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THE  ENGLISH  CONSTITUTION 


A    COMMENTARY  ON 


ITS  NATURE   AND  GROWTH 


BY 

JESSE    MACY,   M.A., 

PROFESSOR  OF  POLITICAL  SCIENCE  IN   IOWA  COLLEGE 


THE    MACMILLAN   COMPANY 

LONDON:  MACMILLAN  &  CO.,  Ltd. 
1906 

All  rights  reserved 


^^ 


,<^o^ 


COPTKIGHT,   1896, 

bt  the  macmillan  company. 


Set  up  and  electrotyped,  January,  1897.      Reprinted,  August, 
1898;  August,  1900;   February,  1903;  September,  1906. 


I 


NorfajooH  53rrg8 

J.  S.  Cashing  &  Co.  -  Berwick  St  Smith 
Norwood  Mass.  U.S.A. 


TO 

iHg  Wife 

MY  MOST  CONSTANT  AND  EFFICIENT  COLABORER 

THIS  WORK 

IS  GRATEFULLY  DEDICATED 


.   212034 

/S 


PEEFACE 

My  knowledge  of  the  present  English  Constitution  has  been 
derived  primarily  from  the  study  of  standard  works  upon  the 
subject,  but  that  has  been  supplemented  by  two  periods  of 
personal  observation.  A  year's  residence  in  England,  from 
July,  1887,  to  July,  1888,  gave  opportunity  for  an  acquaint- 
ance with  British  politics  at  a  most  interesting  and  important 
juncture  of  affairs.  It  covered  the  later  month  of  the  Queen's 
Jubilee  year,  and  the  time  when,  the  Liberals  having  been 
defeated  on  the  Home  Rule  Bill  for  Ireland,  the  Conservatives 
were  inducted  into  office  through  the  cooperation  of  the  Liberal 
Unionists.  Eight  years  later,  I  passed  the  months  from  Feb- 
ruary to  July,  1896,  in  London,  when  the  same  party  had  again 
just  returned  to  power  after  the  failure  of  the  second  Home 
Rule  Bill. 

In  the  prosecution  of  the  work  of  direct  observation,  I  have 
been  the  recipient  of  innumerable  courtesies  and  favours  in  the 
form  of  gifts  of  books  and  papers,  access  to  records,  and  per- 
sonal information  of  great  value.  Among  those  thus  further- 
ing my  plans,  I  take  pleasure  in  mentioning  Mr.  James  Bryce, 
M.P. ;  the  late  Professor  Edward  A.  Freeman;  Mr.  Sam:  Tim- 
mins,  of  Birmingham ;  Mr.  H.  H.  Ho  worth,  M.P.,  of  Manches- 
ter ;  Mr.  Joseph  Wilkinson,  of  York ;  the  late  Canon  Raine,  of 
York  Cathedral ;  Judge  Chalmers,  of  Leamington  ;t  Mr.  Alexan- 
der Ure,  of  Edinburgh ;  and  the  late  Mr.  Henry  Richards,  M.P. 

For  more  direct  aid,  I  gratefully  acknowledge  deep  obliga- 
tions to  Professor  John  Kirkpatrick,  of  Edinburgh  University, 
who  revised  a  portion  of  my  manuscript;  to  Sir  Frederick 
Pollock,  Bart.,  who  read  the  entire  manuscript  and  gave  me 
the  benefit  of  his  criticisms  and  advice.  To  Professor  W.  J. 
Ashley,  of  Harvard  University,  Cambridge,  Mass.,  I  am  espe- 


\ 


viii  PREFACE 

cially  indebted  for  assistance  both  in  the  preparation  of  the 
manuscript  and  in  the  reading  of  the  proof.  For  a  like  service, 
I  also  owe  thanks  to  Professor  0.  F.  Emerson,  of  Adelbert 
College,  Cleveland,  0. ;  to  Mr.  F.  I.  Herriott,  of  Des  Moines, 
la. ;  to  Professor  George  Huntington,  of  Carleton  College, 
Northfield,  Minn. ;  and  to  Mr.  I .  B.  Eichman,  United  States 
Consul-General  at  St.  Gall,  Switzerland.  It  is  not  an  empty 
form  of  words  when  I  say  that  whatever  merits  may  be  found 
in  this  book  are  due  in  no  small  degree  to  the  kindness  of 
generous  friends ;  while  for  its  inaccuracies  and  defects  the 
author  is  alone  responsible. 

In  the  introductory  chapter,  the  statement  is  made  that  one 
object  of  the  book  is  to  enable  American  readers  to  gain  a 
better  knowledge  of  the  American  government.  It  may  be 
an  advantage  to  some  readers  for  me  to  add  that  Part  I.  was 
prepared  specifically  in  order  that  Americans  might  be  able 
to  read  with  greater  profit  Bryce's  The  American  Common- 
wealth. To  fully  appreciate  that  great  work,  the  American 
needs  to  be  well  grounded  in  English  politics.  He  must  know 
the  present  Constitution  in  its  theory  and  in  its  practice. 

Part  II.  is  designed  to  answer  certain  questions  often  raised 
in  an  attempt  to  understand  the  present  English  Constitution. 
Americans  should  never  forget  that,  until  the  founding  of  the 
colonies,  English  history  is  our  history.  Nor  should  they  fail 
to  remember  that  for  a  hundred  years  after,  there  was  a  per- 
sistent effort  to  establish  in  England  a  government  according 
to  what  would  now  be  called  the  American  model,  —  that  is, 
a  government  based  upon  an  artificial  constitution  whereby 
the  Legislature  and  the  Executive  should  be  balanced  one 
against  the  other.  It  was  not  until  the  coming  in  of  the  House 
of  Hanover,  in  1715,  that  English  constitution-making  became 
of  a  distinctly  different  character. 

If  this  book  shall  prove  to  be  of  interest  to  English  readers, 
it  will  be  by  reason  of  the  presentation  of  the  subject  treated 
from  an  American  point  of  view,  rather  than  from  any  dis- 
play of  superior  knowledge. 

Janttary,  1897. 


CONTENTS 


PAOS 

Introduction 1 

Part  I 

THE  NATURE   OF   THE   CONSTITUTION 

CHAPTER  I 

A  Comparative  View  op  the  English  and  American  Consti- 
tutions      9 

Sovereignty  in  the  United  States  and  in  England       ...  9 

Simplicity  and  brevity  of  the  English  Constitution    ...  13 

Meaning  of  the  term  "Constitution  " 14 

Sources  of  the  Constitution 16 

CHAPTER   II 

The  House  op  Commons  and  the  Cabinet 17 

Meaning  of  the  term  "  Parliament " 17 

The  House  of  Lords  and  the  Crown  subject  to  the  will  of  the 

nation  .        • 18 

Election  of  the  Commons 19 

Choosing  of  the  Executive 20 

Importance  of  political  parties 24 

Law-making  in  the  House  of  Commons 27 

Financiering ,        .        .        .29 

The  daily  questions  in  the  House       .        .        .        ,        .        .31 

CHAPTER  III 

Checks  and  Balances 33 

The  great  power  of  the  House  of  Commons        .        .        .        .33 
Distinct  sources  of  power  and  influence  in  the  House  and  the 

electorate 34 

Enforcement  of  the  Constitution 36 

Parliamentary  procedure  as  a  check 37 

ix 


CONTENTS 


CHAPTER   IV 


The  House  of  Lords      .... 
Composition  of  the  House  . 
Creation  and  duration  of  Peerages 
Non-democratic  character  of  the  House 
Attendance  of  members 
Organization  and  politics  of  the  House 
The  Lords  a  legal  check  upon  the  Commons 
Lords  have  coordinate  power  over  non-Cabinet  legislation 
When  the  Lords  must  yield  to  the  Commons 
Relation  of  the  Lords  to  a  Conservative  Cabinet 
Relation  of  the  Lords  to  a  Liberal  Cabinet 
Lords  may  force  a  Liberal  Cabinet  to  resign 
Methods  of  securing  acquiescence  of  the  Lords  . 
The  House  of  Lords  as  a  revisory  body 
The  "  Sick  Man  "  of  the  Constitution 


PAGK 
40 

40 
42 
43 
43 
44 
45 
46 
47 
48 
49 
60 
51 
53 
54 


CHAPTER  V 


The  Crown       . 

The  high  prerogatives  of  the  Crown  mere  forms  of  law 

Five  terms  used  in  describing  the  Executive 

Monarch  acts  only  through  Ministers 

Royal  prerogative  in  the  hands  of  the  Cabinet  strengthens  the 

democracy 

Forms  of  law  contradict  facts  of  the  Constitution 
House  of  Lords  and  the  Senate  of  the  United  States  . 
Power  and  influence  remaining  to  the  Monarch 
Royal  right  to  information 
The  Monarch  must  not  betray  his  Ministers 
The  royal  correspondence   .... 
Influence  of  the  Monarch  still  great    . 
Democracy  jealous  of  secret  influence 
Sentimental  devotion  to  the  Monarch 
Dicey' s  plan  for  royal  referendum 


56 
57 
59 
60 

61 
64 
65 
66 
68 
69 
69 
70 
73 
74 
75 


CHAPTER   VI 

The  Ministry 77 

Cabinet  of  1896 77 

Ministers  not  in  this  Cabinet 78 

Permanent  administrative  force  .......  79 


CONTENTS  xi 

PAGB 

Four  classes  of  Executive  ofl&cers 80 

The  Prime  Minister 80 

Relation  of  Cabinet  officers  to  each  other 82 

Unity  of  the  Cabinet 84 

Ministers  are  partisans    ' 85 

Lower  civil-service  officers  non-partisan 86 

The  Privy  Council 86 

Its  relation  to  the  Cabinet 86 

Its  duties 87 


CHAPTER   VII 

The  Courts 89 

American  courts  interpret  this  Constitution        ....  89 

Legislative  acts  modified  by  the  courts       .....  91 

Common  law  of  judicial  origin 93 

English  courts  protect  the  citizen  against  the  Executive  ;  Amer- 
ican, against  the  Legislature 93 

Personal  rights  of  Englishmen  dependent  on  judicial  decisions  .  94 

House  of  Lords  as  a  court 90 

Judicial  Committee  of  the  Privy  Council 98 

The  Supreme  Court  of  Judicature 99 

The  County  Courts 100 

Quarter  Sessions 101 


CHAPTER  VIII 

The  Church 103 

Bishops  in  the  House  of  Lords 103 

The  Established  Church  and  other  churches      ....  104 

Disestablishment 105 


CHAPTER   IX 

Sources  of  the  Constitution 107 

The  courts  as  one  source     .        .         .        ...        .        .        .  107 

Blackstone's  view 108 

Changes  in  the  Constitution 109 

Conflict  between  law  and  Constitution 110 

In  what  sense  is  the  Constitution  old  ? Ill 

An  outgrowth  of  English  history ■  112 


xii  CONTENTS 

Part  II 

GROWTH  OF   THE   CONSTITUTION 
CHAPTER  X 

PAOS 

Sources  op  Power  and  Influence  in  the  Norman  Period        .  117 

Comparison  with  the  present  Constitution 117 

Crown  overshadowed  all 118 

Conditioned  by  the  barons 119 

By  the  Cimrch 121 

By  the  people 122 

Importance  of  local  government 124 

The  Crown  described 124 

Nobility 125 

Church 126 

Teaching  function  of  the  Church 127 

The  people .128 

Towns  and  cities 129 

Origin  of  juries 129 

Thefyrd 130 

Political  parties 131 

CHAPTER  XI 

Early  Contention  and  Strife 133 

The  King  and  the  national  assembly  .         .        .         .        .         .  133 

Feudal  dues 136 

Danegeld  and  other  taxes .136 

Revenues  of  the  Church 137 

William  II.  crowned 138 

Supported  by  the  English 139 

Weakness  of  the  Great  Council 140. 

Anselm  and  the  King .        .  141 

Henry  I.  and  the  national  assembly 143 

CHAPTER  XII 

Royal  Rule  by  Means  of  the  Council 145 

The  Curia  Begis 145 

Stephen  and  the  Church 147 

Henry  II.  crowned 148 


CONTENTS  xiii 

PAGE 

Development  of  the  Curia  Eegis 149 

Becket  resists  the  King 150 

Constitutions  of  Clarendon          .         .        .        .         .        .         .  151 

Death  of  Becket 151 

Notable  barons'  war 152 

Comparison  with  earlier  and  later  Constitution          .        .        .  154 

Justices  of  the  Peace 167 

CHAPTER   XIII 

Magna  Charta 158 

Ten  years  of  strife 159 

The  appointing  of  an  archbishop 160 

John  becomes  the  Pope's  vassal 161 

At  Runnymede 162 

The  Charter  as  a  harmonizing  agency        .     •  .        .        .        .  162 

Items  in  the  Charter  * 163 

Its  practical  nature 164 

Meaning  of  terms  used 164 

Fifteen  years  of  Charter  privilege 167 


CHAPTER   XIV 


The  Power  of  the  Crown  regained  by  Means  of  Parliament     169 


Alliance  between  Henry  III.  and  the  Pope 

Efforts  to  control  the  ministers  . 

The  Provisions  of  Oxford    .... 

Parliament  as  a  field  for  contending  factions 

Edward  I.  regains  confidence  of  the  people 

Organization  of  courts         .... 

The  Model  Parliament        .... 

Earlier  and  later  Parliament 

The  King  defies  the  clergy  and  yields  to  the  barons 


169 
170 
171 
172 
173 
174 
176 
177 
179 


CHAPTER   XV 


Parliament  as  an  Agency  of  Faction 
Edward  II.  and  the  Ordainers    . 
The  Commons  share  in  legislation 
Edward  III.  and  the  militia 
Separation  of  Parliament  into  two  Houses 
The  Good  Parliament  of  lo.'G 


182 

182 
183 
183 
184 
187 


\ 


xiV  CONTENTS 

PAGE 

Richard  II.  and  the  Peasants'  Revolt 188 

The  King  and  the  Lords  Appellant 189 

The  King  deposed 190 

Local  government 191 

Liveries  and  social  conditions 192 

The  High  Courts 193 

The  Privy  Council 194 


CHAPTER   XVI 

The  Nobility  weakened  by  Faction 196 

The  Lancastrians 196 

Events  leading  to  the  Wars  of  the  Roses 196 

The  position  of  the  Church 197 

Henry  IV.  and  Parliament 197 

The  limitation  of  the  franchise,  1431 199 

Wars  of  the  Roses 200 

Effect  upon  the  Crown 201 

Constitutional  forms 202 


CHAPTER   XVII 

Early  Training  for  Democracy 204 

Form  and  substance  in  the  Constitution 204 

Courts  tended  to  limit  lawlessness 205 

Diversity  of  industries         ........  205 

Various  organizations  among  the  people 206 

Their  relation  to  Democracy 208 

Democracy  of  the  modern  type  of  recent  origin  .        .         .  209 

Swiss  democracy         .        . 211 


CHAPTER   XVIII 

Henry  VII 213 

The  Tudor  century  and  the  growth  of  Parliament      .        .         .213 

Henry  VII.  as  a  chief  constable 215 

Henry  and  the  Star  Chamber 216 

Tudor  dependence  upon  the  middle  classes         .         .         .         .217 
Their  financial  policy 218 


CONTENTS  Xf 
CHAPTER   XlX 

PAGE 

Henry  VlII.  and  the  Reformation 220 

The  reign  characterized  by  great  changes 220 

Henry  and  his  great  minister 221 

Utopia  and  democratic  ideas 221 

Industrial  changes 222 

Effects  of  religious  controversy  upon  the  people          .         .        .  223 

Resistance  to  taxation 224 

Independent  leadership  of  lords  and  clergy  ceases      .         .         .  226 

Growth  of  public  opinion 227 

Henry  VIII.  reflects  the  religious  opinion  of  his  age  .         .         .  228 

Importance  of  the  House  of  Commons 229 

Infatuation  for  law 230 

The  Commons  a  tool  of  the  King 231 

CHAPTER   XX 

Religious  Dissension  and  the  Growth  of  the  House  of  Com- 
mons       234 

Protestant  rule  of  Edward  VI.  followed  by  the  Catholic  rule  of 

Mary 235 

Relative  strength  of  parties  at  the  death  of  Mary       .        .        .  235 

Elizabeth  leaves  England  Protestant 236 

Prejudice  against  the  Pope 237 

Character  of  Elizabeth 238 

Her  relation  to  parties '      .        .        .  239 

Elizabeth  and  the  House  of  Commons 239 

Literature  and  industrial  changes 241 

The  Constitution  at  the  close  of  the  Tudor  century    .        .        .  242 

Growth  of  the  House  of  Commons 243 

Increased  importance  of  Privy  Council      .        .        .        .        .  245 


CHAPTER  XXI 

The  Crown  and  the  House  of  Commons 
Comparison  between  Tudors  and  Stuarts 
The  England  of  the  Stuarts 
The  early  Stuarts  and  their  supporters 
Supporters  of  the  House  of  Commons 
Conflicting  theories  of  the  Constitution 
James  I.  in  Scotland  .... 


247 
247 
248 
250 
252 
253 
254 


xvi  CONTENTS 

PAGB 

Divine-right  theories  of  King  and  Church 255 

Pretensions  of  the  Commons 256 

Their  position  strengthened  by  the  divine-right  theory      .         .  259 

Conflicting  theories  rec(UijilL'd  in  the  Cabinet    ....  260 


CHAPTER   XXII 

The  Early  Stuarts  and  the  Courts   .        .        .        .  '     .        .  261 

The  Bates  case 261 

Naturalization  of  Scottish  residents 262 

Chief  Justice  Coke 262 

The  Star  Chamber  and  other  courts 263 

The  House  of  Commons  a  court 264 

Impeachment 265 

Ministerial  responsibility    ........  266 

Bills  of  attainder 266 


CHAPTER  XXIII 

Sovereign  King  versus  a  Sovereign  Parliament    .        .         .  268 

The  power  of  the  purse 268 

James's  theory  of  finance 260 

The  theory  of  tbe  Commons 269 

Superior  position  of  the  Commons 270 

Petition  of  Right 271 

The  King  as  a  law-breaker 272 

The  Petition  compared  with  Magna  Charta        ....  273 


CHAPTER  XXIV 

Religious  Controversy  . 274 

Puritans  and  Presbyterians 275 

Attempted  compromise 276 

James's  friendship  for  Spain 277 

The  Puritans  and  the  Bible 277 

Archbishop  Laud 278 

Thomas  Wentworth 279 

Scottish  policy  of  Charles .  280 

Ship-money 281 

Parliament  of  1640 .282 


CONTENTS  xvii 
CHAPTER  XXV 

PAQK 

Toleration  and  Democracy 283 

Self-restraint  of  the  common  people 283 

Democracy  an  unattained  ideal 284 

Toleration  in  the  Church  of  the  Middle  Ages      ....  285 

The  Covenant  adopted  by  Parliament 286 

Toleration  and  the  army 287 

Presbyterian  Church  government  not  democratic       .         .         .  288 

Independents  and  Baptists  democratic 288 

Political  debate  favourable  to  democracy 289 

CHAPTER   XXVI 

The  Rebellion  and  the  Commonwealth  • 291 

First  acts  of  the  Long  Parliament 291 

The  Grand  Remonstrance 292 

Beginning  of  war 292 

Oliver  Cromwell  and  his  army 293 

Contributions  of  the  Commonwealth  to  the  Constitution    .        .  294 

Permanent  division  in  the  Church 297 

CHAPTER   XXVII 

The  Monarchy  of  the  Restoration 299 

Difficulty  between  King  and  Parliament  unsettled      .         .        .  299 

Charles  II.  and  James  II.  refuse  to  limit  Royal  Prerogative       .  300 

Reaction  from  Puritan  restraints 301 

The  Commons  of  England  versus  the  common  people         .         .  302 

Non-conformists  become  Dissenters 303 

Acts  against  Dissenters 303 

Ministers  of  Charles  II .        .        .  304 

CHAPTER  XXVIII 

The  Beginnings  op  Political  Parties 306 

Early  divisions 306 

Principles  of  the  two  parties       .         .         .         .         .        .        .  307 

Conflict  between  Danby  and  Shaftesbury 308 

♦'Petitioners"  and  "Abhorrers" 309 

Triumph  of  the  King 310 

Reorganization  of  municipal  corporations 310 

Rye  House  Plot 311 


xviii  CONTENTS 


CHAPTER  XXIX 

PAGE 

The  Tyranny  of  James  II 312 

James  a  high  Tory ~     .        .  312 

He  secures  obedient  courts 313 

Fails  to  secure  an  obedient  Parliament 314 

Declaration  of  Indulgence .        .  314 

Acquittal  of  the  bishops 315 

William  of  Orange  invited  by  Tories  and  Whigs  to  deliver 

them  from  their  King 316 

CHAPTER   XXX 

The  Great  Revolution 317 

William  and  Mary  crowned 317 

Why  the  revolution  was  great 318 

Monarchy  as  developed  by  Tudors  and  Stuarts  survives  the 

revolution 319 

Acts  favourable  to  reign  of  Cabinet  system  analyzed          .        .  321 

CHAPTER   XXXI 

The  Act  of  Settlement 323 

Its  chief  provisions 323 

Permanent  Judiciary 324 

Privy  Council 324 

Pensioners  excluded  from  Parliament         .        .        .        .         •  325 

Failure  in  efforts  to  control  the  Executive 326 

CHAPTER  XXXII 

The  Composition  of  Political  Parties         .....  327 

The  great  Whig  families 328 

Townsfolk  Whig 329 

Tory  party  homogeneous .        .  330 

Division  of  parliamentary  party  in  1641      .        ...        .        .  331 

Persecution  of  Dissenters 332 

CHAPTER  XXXIII 

Other  Acts  following  the  Revolution 333 

The  Jacobites      . 333 

Freedom  of  the  Press 334 

Mutiny  Act  of  1689 335 

Denial  of  the  right  of  petition 336 

Absolutism  in  the  two  Houses 336 


CONTENTS  xix 


CHAPTER  XXXIV 

PAGK 

Origin  of  the  Cabinet 338 

Meaning  of  the  term 338 

Allied  institutions          .        . 389 

All  dependent  on  the  King 340 

Growth  of  legislation  by  the  two  Houses 340 

Conflict  between  King  and  Parliament 341 

Sir  William  Temple's  plan  of  government  .....  342 

Cabinets  of  William  III 344 


CHAPTER  XXXV 

Queen  Anne  and  the  Cabinet 346 

Marlborough 346 

Party  government  gains 347 

Tories  triumphant 348 

George  I.  restores  the  Whigs  to  power 348 

Tories  out  of  oflSce  forty-five  years 360 


CHAPTER  XXXVI 

Walpole  and  the  Cabinet 352 

Parliamentary  title 352 

Walpole  compared  with  Tudors 353 

Harmony  between  Ministry  and  Commons 356 

.Bribery 357 

The  modern  Cabinet  compared  with  the  Cabinet  of  Walpole      .  359 

Walpole  created  the  office  of  Prime  Minister       ....  364 

His  government  not  democratic 367 


CHAPTER  XXXVII 

Walpole's  Successors 370 

The  Pelham  Ministry 370 

The  King  coerced 371 

Impeachment 372 

Pitt's  Ministry        . 373 

George  III 373 


XX  CONTENTS 


CHAPTER   XXXVIII 

PAGB 

Taxation  and  the  Unrepresented  Nation 375 

Resistance  to  taxes  in  England  and  America       ....  375 

Taxation  by  Walpole 377 

Peculiar  conditions  in  America 379 

Duty  of  resisting  acts  of  Government 380 


CHAPTER  XXXIX 

Government  by  a  Divided  Cabinet 382 

Earlier  and  later  Georges 382 

Character  of  George  III 383 

Lord  Bute's  Ministry 384 

Ministry  of  Lord  North 385 

Increased  power  of  the  Crown 386 

Rockingham  Ministry 387 

Coalition  Ministry 388 

Pitt  defies  the  Commons 388 


CHAPTER  XL 

Pitt  and  the  Cabinet 391 

Secret  advisers  of  the  King 391 

Failure  of  the  Reform  Bill 392 

The  "  divine  right "  of  the  Heir  Apparent 393 

The  French  Revolution 394 

Pitt  driven  from  office 395 

Conflict  between  King  and  Cabinet 397 

Pitt  restored  to  office 399 

Catholics  and  Dissenters 400 

Weakness  of  Parliament 402 

"Debate  over  the  duties  of  the  Cabinet 403 


CHAPTER  XLI 

The  Cabinet  under  George  IV 407 

Tory  Ministry  continued  in  office 407 

Catholic  Emancipation 408 

Quarrel  in  the  royal  family 408 

Lord  Brougham's  resolution 409 


CONTENTS  xxi 
CHAPTER   XLII 

PAOS 

Political  Parties  previous  to  1832 411 

Party  factions 411 

The  "  Good  Men  "  of  George  III 412 

The  political  machines  in  the  hands  of  the  King          .        .        .  413 

Coalition  Ministry  of  1782 413 

Opposition  to  mixed  ministries 414 

Pitt  a  Tory  by  accident 415 

Changes  in  party  constituents 415 

Transfer  of  population 416 

Whig  party  never  popular 417 

Wilkes  as  a  leader  of  mobs 418 

Effects  of  the  war  with  France 419 

Whig  doctrines 420 


CHAPTER   XLIII 


Popular  Movements  previous  to  1832 


421 
422 
422 
423 
423 


Early  instances 

"  Society  of  the  Friends  of  the  People  " 
Long  period  of  repression 
Macaulay's  speech  on  the  Reform  Bill 

CHAPTER   XLIV 

The  Great  Reform 426 

The  Duke  of  Wellington 425 

Changes  in  the  law 425 

Crown  made  subject  to  the  Cabinet 426 

The  Cabinet  and  the  early  Hanoverians 426 

William  IV.  yields  to  the  Democracy 430 

The  mob  gives  place  to  Democracy       .        .        .        .        .        .431 

The  Reform  of  1832  a  greater  revolution  than  that  of  1688         .  432 

Coercion  of  the  Lords 434 

Changes  in  party  names 435 

CHAPTER  XLV 

Later  Reform  Movements 436 

The  Chartist  agitation 437 

The  Acts  of  1867  and  1885 438 

Civil  service  reform  of  1857 438 

Municipal  Corporations  Act 439 


CONTENTS 


CHAPTER   XLVI 

FAOB 

Local  Government  and  the  Constitution 441 

The  people  loyal  to  the  early  kings 441 

Decline  of  local  governments 443 

Advantages  of  Democracy  without  its  responsibilities        .        .  444 

The  people  always  influential        .        .        .        .        .        .        .  445 

Close  corporations  in  towns 446 

Control  of  boroughs  by  kings  and  magnates        ....  447 


CHAPTER   XLVII 

Origin  of  the  Term  "  Constitution  " 449 

In  the  Charter  of  Virginia,  1609 .449 

Penn  uses  the  term  in  the  modern  sense 450 

Algernon  Sidney  and  James  Harrington 451 

Constitutions  of  Clarendon 452 

Burnet's  illustration 452 

Peculiar  use  in  the  eighteenth  century 453 

The  Leviathan  of  Hobbes 454 

Locke's  Civil  Government 455 

The  influence  of  the  contract  theory 456 

Blackstone 458 

Constitution  adored  by  all  parties 460 


CHAPTER   XLVIII 

Burke  and  the  Constitution 461 

Constitution  as  a  sentimental  bond 461 

Burke  attacks  the /n/??<e wee  of  the  King       .        .        .        .        .  463 

Encourages  the  Americans 463 

Appeal  to  the  People 464 

Burke  not  a  Democrat 466 

His  application  of  the  contract  theory 467 

A  new  divine-right  theory 468 

Definition  of  "  The  People  "          . 469 

The  Constitution  apotheosized 470 

Both  changes  dreaded  by  Burke  have  been  adopted    .        .        .  472 


CONTENTS  xxiii 


CHAPTER   XLIX 

PAOK 

Recent  Expositors  of  the  Constitution 473 

Contrast  between  Dicey  and  Burke 473 

Mr.  Bagehot  as  aii  advocate 474 

His  fear  of  Democracy 475 

Sir  Henry  Maine  and  Mr.  Lecky 476 


CHAPTER   L 

The  Unity  of  the  English 478 

Growth  of  Unity    .        . 479 

Not  caused  by  strife 479 

King  Alfred  and  the  good  laws 480 

Normans  become  English 482 

Hostility  to  France 482 

Religion  and  literature 484 


APPENDIX 


Magna  Charta 487 

The  Petition  of  Right,  1628  .        . 497 

The  Habeas  Corpus  Act,  1679      .        .        .        .        .        .        .        .500 

Bill  of  Rights,  1689 508 

The  Act  of  Settlement,  1700 615 


INTRODUCTION 

rriHE  American  lives  under  a  constitution  which  he 
-*-  thinks  he  understands.  He  reads  it.  As  a  school- 
boy he  often  commits  it  to  memory.  He  knoAvs  when 
and  how  it  was  made.  In  the  course  of  his  life  he  learns 
many  facts  about  the  agencies  of  government.  Many 
strong  tendencies  combine  to  give  to  the  American  an 
impression  that  he  possesses  a  knowledge  of  his  own  gov- 
ernment in  advance  of  his  actual  knowledge,  and  to  create 
a  belief  that  the  Constitution  is  more  artificial  than  it 
really  is. 

The  natural  and  convenient  corrective  to  these  errone- 
ous impressions  and  false  beliefs  is  a  study  of  the  English 
origin  of  our  own  political  institutions.  And  to  keep  the 
American  citizen  alive  to  the  fact  that  he  is  subject  to 
a  living  and  ever-changing  constitution  nothing  is  more 
effective  than  a  study,  by  way  of  comparison  and  contrast, 
of  the  latest  developments  of  the  Constitution  of  the 
mother-country. 

In  a  recent  work  on  Sir  Robert  Walpole,  Mr.  John 
Morley  observes :  "  The  great  constitutional  question  of 
the  eighteenth  century,  as  every  reader  knows,  was  whether 
the  government  of  the  realm  should  be  parliamentary  or 
monarchical.  Was  it  to  be  an  absolute  rule  of  the  king  ; 
or,  as  Cromwell  sought,  a  Parliament  making  laws  and 
voting  money,  coordinate  with  the  Chief  Person,  and  not 
meddling  with  the  Executive ;  or  a  Parliament  contain^ 

B  1 


2  INTRODUCTION 

ing,  nominating,  guiding,  and  controlling  its  own 
Executive  ?  "  i 

Apart  from  the  absolute  monarchy  there  are  here  recog- 
nized two  distinct  forms  of  free  government.  America 
to-day  represents  one  form,  and  England  is  the  best  repre- 
sentative of  the  other  form.  The  Chief  Person  in  the 
United  States  is  the  President  of  the  Republic,  and  it  is 
the  business  of  Congress  to  make  laws,  to  vote  money,  and 
not  to  meddle  with  the  Executive  ;  while  in  each  State  the 
Chief  Person  is  the  Governor  of  the  State,  and  it  is  the 
business  of  the  State  Legislature  to  make  laws,  vote  sup- 
plies, and  not  meddle  with  the  Executive. 

The  American  colonies  were  founded  during  the  cen- 
tury in  which  there  was  continuous  discussion  of  the  nature 
of  the  English  Constitution  —  the  century  in  which  there 
were  many  efforts  made  to  change  in  an  artificial  way  the 
English  government.  All  such  efforts  at  conscious  arti- 
ficial alteration  failed,  and  the  English  Constitution,  as 
Americans  would  say,  was  allowed  to  drift.  Or,  as  the 
English  are  wont  to  say,  after  the  century  of  debate  and 
attempted  revolution  the  English  Constitution  went  on 
growing  and  developing  in  its  characteristic,  normal  way. 
In  America  the  normal  way  for  a  constitution  to  be  made 
or  changed  is  by  a  conscious  act  of  the  people,  and  this 
idea  has  been  emphasized  in  such  a  way  as  to  tend  to  ob- 
scure the  equally  important  fact  of  the  unconscious  growth 
and  development  of  the  American  Constitution.  In  no 
way  can  the  American  citizen  so  conveniently  and  so 
profitably  gain  the  needed  sense  of  the  natural  growth  of 
his  own  Constitution  independently  of  all  efforts  at  con- 
scious amendment,  as  by  following  out  and  studying  the 
results  of  such  change  in  the  other  branch  of  the  common 
constitutional  stem. 

This  work  on  the  English  Constitution  has  grown  out 

1  Walpole,  p.  139. 


INTRODUCTION  3 

of  efforts  to  assist  American  students  to  a  better  under- 
standing of  the  constitution  of  their  own  government. 
In  order  to  secure  in  the  mind  of  an  American  student  a 
continued  interest  in  a  constitution  he  must  at  least  be 
made  to  believe  that  it  is  being  explained.  It  is  a  funda- 
mental element  in  his  notion  of  a  constitution  that  it  is 
something  to  be  commented  upon  and  explained.  To  the 
Englishman  the  Constitution  of  his  country  is  simply  an 
undistinguished  part  of  that  universe  of  which  he  is  him- 
self a  part.  He  has  no  acute  sense  of  the  need  of  an 
explanation  of  the  one  more  than  of  the  other.  Many 
British  writers  have  done  admirable  and  useful  work  in 
explaining  the  present  English  Constitution,  just  as  many 
of  them  have  taken  a  leading  part  in  the  scientific  ex- 
planation of  the  universe.  But  it  is  not  to  be  expected 
that  an  English  author  would  furnish  such  a  commentary 
upon  his  own  government  as  would  be  in  all  respects 
suited  to  the  needs  of  the  average  American. 

In  the  same  chapter  of  Mr.  Morley's  life  of  Walpole, 
from  which  I  have  already  quoted,  are  found  the  words  : 
"  To-day  it  is  correct  to  say  that  the  Cabinet  has  drawn 
to  itself  all,  and  more  than  all,  of  the  royal  power  over 
legislation,  as  well  as  many  of  the  most  important  legisla- 
tive powers  of  Parliament."  How  is  it  that  a  Parliament 
"  contains,  nominates,  guides,  and  controls  its  own  Execu- 
tive," while  at  the  same  time  the  Executive  has  drawn  to 
itself  all,  and  more  than  all,  the  royal  power  over  legisla- 
tion, as  well  as  many  of  the  most  important  legislative 
powers  of  Parliament  ?  To  the  English  statesman,  or  to 
the  American,  whose  acquaintance  with  the  political  liter- 
ature of  England  has  enabled  him  to  use  words  in  the 
English  sense,  the  question  suggests  no  difficulty  —  he 
sees  nothing  to  be  explained.  Parliament  is  the  name 
of  the  united  government  exercising  sovereign  power  — 
legislative  and  executive  as  well.     It  is,  however,  a  cus- 


4  mTRODUCTION 

tomary  form  of  speech  to  use  the  word  in  a  more  limited 
sense  as  applied  to  the  two  Houses  apart  from  the  Execu- 
tive. So  to  the  Briton  there  is  an  obvious  sense  in  which 
the  Cabinet  controls  the  two  Houses,  and  likewise  an 
obvious  sense  in  which  the  two  Houses  control  the  Cab-- 
inet.  But  to  the  ordinary  American  reader  Parliament 
is  but  one  of  a  multitude  of  names  for  a  legislative 
body,  and  with  him  it  is  a  cardinal  principle  that  a  legis- 
lature shall  not  meddle  with  the  Executive.  There  is, 
of  course,  no  difficulty  in  understanding  the  bare  fact 
that  the  Parliament  contains  the  chief  executive  officers. 
But  the  American  sense  of  the  word  Parliament,  and  the 
American  sympathy  with  and  prejudice  in  favour  of  the 
parliamentary  party,  as  presented  in  English  history  and 
in  the  political  writings  of  Englishmen  which  Americans 
read  with  approval,  all  tend  to  give  undue  emphasis  to 
the  importance  of  the  two  Houses  apart  from  the  Execu- 
tive, and  to  obscure  the  actual  relations  of  the  Cabinet 
and  the  Crown  to  the  Houses. 

Only  since  the  formation  of  the  American  Union  can 
it  be  said  that  Parliament  has  in  any  proper  sense  habitu- 
ally nominated,  guided,  and  controlled  the  Executive. 
Parliament  has  always  in  a  manner  contained  the  Execu- 
tive ;  but  until  recent  years  it  would  be  much  nearer  the 
truth  to  say  that  the  Executive  habitually  nominated, 
guided,  and  controlled  the  House  of  Commons,  than  that 
the  House  chose  and  controlled  the  Executive.  The 
dominance  of  the  House  of  Commons  has  been  attained 
only  after  centuries  of  political  conflict ;  centuries  of 
contention  that  Parliament,  or  the  nation  as  represented 
in  Parliament,  ought  to  rule.  The  triumph  of  Parlia- 
ment has  been  secured  in  large  part  because  of  the  fact 
that  the  English  political  writing  with  which  Americans 
are  most  familiar  has  emphasized,  often  beyond  the 
line  of  accurate  statement,  the  powers  of  Parliament  as 


•    INTRODUCTION  6 

compared  with  those  of  the  Crown.  And  the  peculiar 
difficulty  which  the  American  reader  experiences  in 
understanding  the  executive  side  of  Parliament  is  there- 
fore rather  increased  by  his  acquaintance  with  this  parti- 
san political  literature. 

Those  who  read  attentively  such  books  as  Bagehot's 
English  Constitution^  Anson's  Law  and  Custom  of  the 
Constitution^  and  Dicey's  Introduction  to  the  Study  of 
the  Law  of  the  Constitution^  get  a  clear  idea  of  the  work- 
ing of  the  present  Constitution.  But  an  American  reader 
is  not  satisfied  with  knowing  what  a  constitution  is ;  he 
wants  also  to  know  how  it  was  made. 

In  this  work  I  have  undertaken  first  to  translate  into 
American  forms  of  speech  English  descriptions  of  the 
English  Constitution,  and  second  to  explain  the  origin 
of  the  present  Constitution.  I  have  not  intended  to 
furnish  in  any  sense  a  substitute  for  English  works  on 
the  same  subject,  but  rather  to  facilitate  their  use.  The 
work  is  in  fact  the  result  of  experience  in  the  effort  to 
interest  American  college  students  in  the  study  of  stand- 
ard authorities  on  the  English  government. 

The  Second  Part  of  my  book  is  not  a  constitutional 
history  of  England  in  the  accepted  meaning  of  the  term. 
It  is  rather  a  commentary  on  that  history.  It  is  a 
selection  of  such  facts,  incidents,  and  opinions  as  I 
believe  to  be  helpful  to  an  understanding  of  the  present 
Constitution.  In  the  ordinary  constitutional  history  the 
point  of  view  is  from  the  contemporary  society  of  each 
period  described.  In  such  a  history  events  are  recorded 
without  especial  reference  to  their  obvious  bearing  upon 
present  political  experience.  In  this  work  the  point  of 
view  is  present  facts  and  experience.  Events  in  the  past 
not  having  obvious  bearing  upon  the  present  Constitution 
are  intentionally  omitted.  This  plan  necessitates  "  tracing 
history  backwards."     It  is  a  use  of  political  literature  for 


6  INTRODUCTION 

the  single  purpose  of  explaining  present  political  institu- 
tions in  their  practical  workings.  The  aim  is  to  make 
the  existing  Constitution  thinkable.  A  thinkable  consti- 
tution must  necessarily  precede  a  correctly  understood 
constitution.  It  is  by  no  means  expected  that  all  the 
views  and  opinions  here  expressed  will  be  accepted  as 
correct  by  that  class  of  readers  who  take  the  trouble  to 
think  for  themselves  upon  the  subjects  discussed. 

I  have  written  the  book  without  attempting  a  formal, 
technical  definition  of  the  principal  term.  It  may,  how- 
ever, be  helpful  to  the  reader  to  accept  the  following  as  a 
convenient  working  definition  :  A  political  constitution  is 
that  whereby  the  instrumentalities  and  powers  of  govern- 
ment are  distributed  and  harmoyiized.  If  there  is  any 
peculiar  merit  in  this  definition  apart  from  its  brevity,  it 
is  found  in  the  Words  "that  whereby."  The  phrase  being 
entirely  general  will  admit  of  the  substitution  of  anything 
that  has  ever  been  called  a  constitution,  whether  it  be  a 
written  document  proceeding  direct  from  the  body  politic, 
or  whether  it  be  a  body  of  customs,  habits,  and  under- 
standings, or  a  body  of  fundamental  laws  proceeding  from 
a  sovereign  ruler  or  a  sovereign  legislature ;  or  whether 
it  be  a  mere  matter-of-fact  government  without  reference 
to  origin.  Almost  anything  which  is  called  a  constitution 
in  current  political  writing  may  be  described  as  that 
whereby  the  powers  of  government  are  distributed  and 
harmonized.  Viewed  in  an  active  sense  it  is  the  object 
of  a  constitution  to  secure  harmony  in  the  exercise  of 
governmental  power;  that  is,  to  prevent  encroachments 
of  the  various  parts  one  upon  another. 


Part  I 

NATUKE  OF  THE  CONSTITUTION 


CHAPTER  I 

A  COMPARATIVE  VIEW  OF  THE  ENGLISH  AND  AMERICAN 
CONSTITUTIONS 

IT  is  difficult  to  adhere  to  a  technical  definition  of  the 
word  "sovereignty"  in  a  prolonged  discussion  of 
actual  political  institutions.  It  is  a  favourite  theory  of 
some  writers  that  in  all  cases  true  sovereignty  rests  with 
the  people ;  that  he  who  is  called  sovereign,  or  the  body 
of  persons  who  are  regarded  as  exercising  sovereign 
power,  should  be  viewed,  not  as  the  real  sovereigns, 
but  rather  as  agents  of  the  sovereign  people.  According 
to  this  theory  the  Czar  of  Russia  rules  by  the  permis- 
sion, or  by  the  will,  of  the  Russian  nation. ^  Whatever 
may  be  the  value  of  this  theory  as  applied  to  other 
nations,  it  seems  to  be  the  only  theory  that  is  applicable 
in  the  case  of  the  United  States.  If  there  is  anywhere 
in  this  country  a  supreme  and  ultimate  authority,  it  is 
vested  in  the  people.  When  our  forefathers  ceased  to 
acknowledge  English  authority,  they  began  to  create 
agencies  for  a  general  government,  and,  at  the  same 
time,  to  adopt  written  constitutions  for  the  government 
of  the  separate  states.  A  few  years  later,  the  people 
ordained  and  established  a  written  Constitution  for  the 
general  government.  According  to  all  these  constitu- 
tions, there  is  no  one  officer  who  does  not  act  under 
limitations   and   restrictions,  not   one   who   may  not   be 

1  Rousseau,  Social  Contract^  Bk.  II. 
9 


10  NATURE   OF   THE   ENGLISH  CONSTITUTION      chap,  i 

removed  from  office  and  punished  for  official  wrong- 
doing. There  are  no  officers  whom  we  call  sovereign, 
or  whom  we  are  accustomed  to  think  of  and  speak  of 
as  exercising  sovereign  power.  It  may  be  accepted  as 
a  fundamental  principle  of  our  Constitution  that  every 
exercise  of  the  power  of  government  shall  be  limited. 
If,  in  the  strict  sense  of  the  word,  sovereignty  exists 
in  such  a  government,  it  must  be  in  the  people  that 
enact  the  written  constitutions,  define  the  sphere  of  gov- 
ernment, and  determine  the  powers  of  the  agents  or 
officers  of  the  government. 

The  people  of  the  United  States  have  ordained,  through 
their  constitutions,  that  a  part  of  the  business  of  govern- 
ment shall  be  transacted  by  federal  officers,  and  part 
shall  be  left  in  the  hands  of  the  states.  This  peculiarity 
of  the  government  has  led  to  a  novel  use  of  the  word 
"  sovereign."  We  say  that  the  federal  government  exer- 
cises sovereign  authority  over  certain  matters,  such  as 
foreign  relations  and  the  postal  service,  while  the  states 
exercise  sovereign  authority  over  certain  other  matters, 
such  as  general  police  regulations.  This  has  been  called 
"divided  sovereignty."  In  one  sense  this  is  an  absurd 
expression ;  yet  the  thing  which  the  term  describes  is 
not  absurd.  We  live  under  the  authority  of  two  govern- 
ments, each  acting  through  separate  and,  for  the  most 
part,  independent  agencies.  In  our  famous  controversy 
respecting  the  conflict  of  these  two  sovereignties,  the 
most  extreme  of  the  state-rights  party  admitted  that 
there  were  some  things  Avhich  the  federal  government 
alone  had  the  authority  to  do.  On  the  other  hand,  the 
most  extreme  advocate  of  federal  authority  admitted  that 
there  were  some  things  which  the  states  alone  could 
do.  The  Civil  War  may  be  said  to  have  settled  the 
principle  that  hereafter  a  state  or  a  group  of  states 
intending  to  form   a  separate  and  independent  govern- 


CHAP.  I  A  COMPARATIVE   VIEW  U 

ment  must  obtain  the  consent  of  the  general  government 
or  pursue  the  old-fashioned  plan  of  revolution,  and  not 
attempt  to  accomplish  the  object  by  the  exercise  of  an 
alleged  guaranteed  constitutional  right.  Undoubtedly 
the  War  served  to  emphasize  in  the  public  mind  the 
importance  of  federal  authority ;  yet,  in  its  main  feat- 
ures, the  Constitution  remains  unchanged.  We  are  still 
subject  to  a  "divided  sovereignty." 

At  the  time  of  the  formation  of  the  Constitution  of 
the  United  States,  a  discussion  of  the  various  theories 
of  sovereignty  was  carried  on  by  a  number  of  philoso- 
phers and  statesmen,  and  these  theories  undoubtedly  had 
some  influence  upon  the  result,  but  they  were  not  the  con- 
trolling factors.  Besides  the  form  of  words  embodying 
the  notion  that  all  power  is  derived  from  the  people, 
there  is  little  in  our  constitutions  or  laws  to  remind  us 
of  any  theory  or  peculiar  view  concerning  the  nature 
of  sovereignty.  It  was  the  fact  of  the  coexistence  of 
two  sets  of  governmental  agencies  rather  than  any 
theory  on  the  subject  that  gave  to  our  Constitution 
this  unique  feature. 

But  when  we  come  to  the  study  of  the  English  Con- 
stitution, the  case  is  different.  The  substance  of  the 
English  Constitution  is  in  large  part  a  matter  of  theory 
or  opinion.  It  is  worth  while  for  the  American  student 
to  take  some  pains  to  get  out  of  the  matter-of-fact  state 
of  mind  which  is  necessary  to  enable  him  to  under- 
stand his  own  Constitution,  and  get  himself  into  a  state 
of  mind  whereby  he  can  contemplate  and  consider  the 
influence  of  theories  and  weigh  the  effect  of  vague  and 
varying  opinions  and  mere  conventions  in  the  formation 
of  constitutions. 

In  the  study  of  the  English  Constitution  we  are  con- 
fronted on  every  hand  with  facts  and  fictions  which  can 
be  explained  only  by  a  knowledge  of  certain  theories  of 


12  NATURE  OF  THE  ENGLISH  CONSTITUTION      chai».  i 

sovereignty.  According  to  the  views  of  the  leading 
writers  and  pubHcists  of  the  present  day,  sovereignty  in 
England  is  vested  in  Parliament,  and  the  ruling  branch 
of  Parliament  is  elected  by  the  people.  In  America, 
the  people  in  their  sovereign  capacity,  at  the  beginning 
adopted  written  constitutions  for  the  general  and  for  the 
state  governments,  and,  on  rare  occasions,  they  act  in  the 
same  capacity  when  they  amend  their  constitutions  or 
enact  new  ones.  Only  thus  does  sovereign  action  appear 
in  America.  In  England,  the  people  act  in  their  sov- 
ereign capacity  when  they  choose  members  of  Parliament, 
and  a  newly  elected  Parliament  in  England  embodies  in 
itself  all  the  powers  of  sovereignty.^ 

Here  is  one  great  contrast  between  the  English  and 
the  American  constitutions.  Abolish  all  our  state  gov- 
ernments ;  in  the  separate  and  independent  federal 
executive  let  there  be  a  Cabinet  composed  of  members 
of  the  Congress,  who  at  the  same  time  control  both  legis- 
lative and  executive  business ;  remove  from  our  Supreme 
Court  its  power  to  refuse  to  give  effect  to  a  law  of  Con- 
gress ;  leave  every  power  of  government,  local  and  general, 
in  the  hands  of  a  Congress  controlled  by  a  Cabinet  and  of 
such  agencies  as  the  Congress  may  choose  to  create  ;  and 
we  should  have  in  this  country  a  counterpart  of  the 
English  Constitution :  we  should  then  know  more  about 
the  sovereignty  of  a  government  in  action  than  we  can 
ever  learn  from  a  study  of  our  actual  institutions.  The 
Englishman  votes  for  officers  who  exercise  sovereign 
power,  because  in  vdting  for  members  of  Parliament  he 
virtually  chooses  the  party  leaders  who  form  the  Cabinet 
which  directs  and  manages  Parliament,  the  sovereign 
body ;  the  American  can  only  vote  for  officers  who 
exercise  restricted  powers.  The  American  electorate 
has  chosen  to  exhaust  its  sovereign  acts  in  the  creation 
1  Dicey,  The  Law  of  the  Constitution^  Lect  II. 


CHAP.  I  A  COMPARATIVE   VIEW  13 

of  constitutions  which  make  it  impossible  for  any  one 
person  or  body  except  the  people  to  exercise  sover- 
eign powers ;  the  English  electorate  is  brought  into  im- 
mediate contact  with  the  agency  of  sovereign  power. 
Parliament  exercises  the  full  sovereignty  of  the  nation.^ 
Every  governmental  act  is  authorized  or  permitted  by 
Parliament.  According  to  this  view  the  English  Consti- 
tution is  simplicity  itself  when  compared  with  our  own. 

Mr.  Bryce,  in  his  American  Cominonwealth^  tells  us 
just  how  many  minutes  it  takes  to  complete  the  reading 
of  the  Constitution  of  the  United  States.  But  when  we 
have  finished  this  reading  there  are  many  state  consti- 
tutions which  call  for  a  reading.  Then  there  are  the 
decisions  of  the  courts,  state  and  federal,  in  which  provi- 
sions of  the  constitutions  are  subjected  to  interpretation. 
One  would  not  proceed  far  with  this  task  without  dis- 
covering that  our  constitutions  with  the  interpretations 
thereof  furnish  reading  enough  for  a  lifetime.  Yet  every 
word  is  really  a  part  of  the  Constitution.  It  is  this 
partitioning  of  governmental  business  between  two  sets 
of  governmental  agencies,  and  still  farther  the  placing  of 
legislative,  executive,  and  judicial  business  in  the  hands 
of  independent  agencies,  which  has  so  complicated  and 
lengthened  the  literature  of  the  American  Constitution. 
Leave  out  of  the  American  Constitution  this  parcelling 
out  and  balancing  of  powers,  and  nearly  all  would  be  left 
out. 

Note  then  the  simplicity  of  the  English  Constitution, 
in  which  we  are  relieved  from  that  nice  adjusting  of 
powers  which  has  so  many  times  been  the  despair  of  our 
courts.  If  we  adopt  to  its  full  extent  the  now  generally 
accepted  theory  of  the  English  Constitution,  and  apply  to 

1  "  So  long,  therefore,  as  the  English  Constitution  lasts,  we  may  vent- 
ure to  aflSrm  that  the  power  of  Parliament  is  absolute  and  without  con- 
trol."    Cooley's  Blackstone,  1871,  Vol.  I.,  p.  161. 


14  NATURE   OF  THE   ENGLISH  CONSTITUTION      chap,  i 

it  the  American  method  of  description,  we  shall  have  a 
constitution  very  short  and  very  simple.  The  substance 
of  it  may  be  summed  up  in  the  one  sentence,  "All  the 
poAvers  of  government  are  in  the  hands  of  Parliament." 
It  is  well  for  the  American  student  firmly  to  grasp 
this  simple  but  complete  notion  of  the  English  Con- 
stitution. If  he  constantly  bears  in  mind  its  sim- 
plicity, its  brevity,  and  its  comprehensiveness,  it  will 
be  greatly  to  his  advantage.  Mr.  Bagehot,  in  a  book 
of  three  hundred  and  fifty  pages,  has  given  a  marvel- 
lously accurate  picture  of  the  English  Constitution. 
But  if  we  leave  out  of  his  book  the  long  arguments  in 
favour  of  the  English  Cabinet  S3^stem  as  against  the 
American  presidential  system,  the  examination  of  various 
methods  of  administration,  the  lengthy  discussion  of  the 
relative  merits  of  royal  and  non-royal  Cabinet  govern- 
ments, and  retain  simply  that  part  of  the  book  which 
describes  what  the  Constitution  is  in  our  sense  of  the 
term,  it  will  be  found  exceedingly  brief.  Mr.  Dicey's 
book  on  The  Law  of  the  Constitution  is  for  the  most  part 
occupied  with  a  well-sustained  argument  in  support  of 
the  theory  of  parliamentary  supremacy.  The  part  of  the 
book  which  an  American  would  naturally  accept  as  a 
description  of  the  Constitution  may  be  read  in  a  few 
minutes.  In  one  place  is  found  a  statement  of  the  cus- 
toms of  the  Constitution,  and  I  find  that  I  can  read  them 
all  in  about  one  minute.  The  author  does  not,  however, 
profess  to  give  a  full  list ;  yet  if  all  the  laws,  which  we 
should  naturally  classify  as  constitutional  in  their  char- 
acter, were  clearly  summarized,  and  all  the  customs  of  the 
Constitution  were  clearly  stated,  the  whole  could  be  read 
in  a  short  time. 

The  word  "constitution,"  like  other  words  used  in 
political  discussion,  has  a  variety  of  meanings.  In  the 
present  stage  of  political  science,  he  who  sets  a  proper 


CHAP.  I  A  COMPAEATIVE  VIEW  16 

value  upon  clearness  of  ideas  will  not  usually  attempt  a 
technical  definition  of  the  terms  used.  The  student  is 
compelled  to  struggle  for  clearness  of  ideas.  To  this  end 
he  must  learn  as  many  definitions  as  he  can,  and,  above 
all,  he  must  learn  to  detect  to  the  extent  of  his  ability  the 
precise  meaning  of  important  words  in  the  passages  where 
they  are  used.  We  get  no  full,  comprehensive  view  of 
the  Constitution  of  the  United  States  until  we  look  be- 
yond the  document  which  bears  that  name,  and  include 
the  constitutions  of  the  various  states.  These  taken 
together  may  be  held  to  embody  our  written  Constitu- 
tion. This  Constitution,  being  written,  has  impressed  Eng- 
lishmen as  stiff  and  rigid.  But  to  see  our  real  Consti- 
tution we  are  compelled  to  look  beyond  these  documents 
to  their  embodiment  in  our  governmental  institutions. 
These  are  not  rigid ;  they  are  not  unchanging.  At  scores 
of  points  there  are  observed  tendencies  to  change.  Here 
the  executive  tends  to  encroach  upon  the  legislature  or 
upon  the  judiciary;  there  a  legislature  encroaches  upon 
the  executive,  or  strives  to  keep  its  acts  from  being 
reviewed  by  the  courts ;  again,  the  courts  are  becoming 
political  and  are  assuming  to  decide  questions  which 
belong  to  the  legislature;  or  the  federal  authorities  are 
encroaching  upon  the  states,  or  the  states  upon  the  fed- 
eral government ;  or  the  governmental  agencies  are  en- 
croaching upon  the  rights  of  citizens,  or  the  citizens, 
through  unauthorized  agencies,  are  encroaching  upon  the 
field  of  government.  The  American  Constitution  is  de- 
signed to  prevent  these  encroachments,  to  preserve  the 
rights  of  citizens,  and  to  outline  and  harmonize  the  work 
of  the  several  departments  of  government,  and  define  the 
duties  of  the  governmental  agents.  In  other  words,  the 
chief  object  of  the  Constitution  is  to  determine  the  spheres 
of  governmental  agencies  and  to  prevent  encroachments. 
The  English  have  never  in  cold  blood  set  themselves  to 


16  NATURE  OF  THE  ENGLISH  CONSTITUTION      chap,  i 

the  task  of  conscious  constitution-making,  except  for  a 
short  time  under  the  Commonwealth.  Their  Constitution 
comes  from  certain  facts  in  their  history,  and  especially 
from  certain  notions  concerning  their  history  which  have 
been  promulgated  in  recent  years.  Some  English  writers 
maintain  that  the  chief  features  of  their  Constitution 
have  existed  for  centuries,  yet  the  consciousness  of  the 
possession  of  an  important  constitution  is  of  recent  date. 

The  late  Edward  A.  Freeman  was  wont  to  take  pleasure 
in  tracing  the  new  and  liberal  developments  in  the  Eng- 
lish government  to  the  early  institutions  of  the  country. 
According  to  his  theory  the  Constitution  of  to-day  is 
derived  by  removing  the  innovations  of  the  Middle  Ages. 
It  is  a  discovery  and  a  restoration  of  that  which  existed 
a  thousand  years  ago.  Other  authorities  are  disposed  to 
question  any  important  connection  between  recent  con- 
stitutional development  and  early  institutions.  These 
trace  the  Constitution  of  to-day  to  much  more  recent 
facts.  Yet  all  agree  in  deriving  it  from  facts  in  English 
history,  either  ancient  or  modern.  The  real  American 
Constitution,  as  we  have  seen,  is  not  simply  the  docu- 
ments called  by  the  name,  but  is  besidea  what  has  been 
read  out  of  the  documents,  or  read  into  the  documents, 
and  embodied  in  certain  governmental  acts.  The  English 
Constitution  is  made  up  of  certain  views  which  have  been 
read  out  of  or  read  into  English  history  and  embodied 
in  certain  governmental  acts.  In  each  case  it  is  to  be 
noted  that  the  important  thing  is  not  the  documents  or 
the  history,  but  the  views  which  men  have  held  respect- 
ing them.  It  is  not  impossible  that  a  constitutional 
principle  as  solid  as  adamant  may  be  derived  from  an 
erroneous  notion  of  history. 


CHAPTER  II 

THE  HOUSE  OF  COMMONS   AND  THE  CABINET 

THE  real  English  Constitution  is  less  simple  than 
would  appear  from  the  previous  description.  This 
is  true:  first,  because  authorities  are  not  agreed  upon  the 
theory  that  sovereignty  is  vested  in  the  people,  and  there 
are  many  facts  which  seem  to  give  support  to  a  different 
theory;  secondly,  because  Parliament  itself,  which  is  rep- 
resented as  the  sole  agency  of  sovereign  power,  is  far 
from  being  simple.  If  one  will  take  the  trouble  to  read 
current  political  literature  attentively,  he  will  soon  dis- 
cover three  distinct  meanings  of  the  word  "Parliament." 

1.  The  word  is  used  when  it  means   simply  the   House       "^ 
of    Commons ;    thus,    "  A   new   Parliament   was   elected 

in  1892,"  i.e,  a  new  House   of   Commons   was   elected. 

2.  The  word  means  the  House  of  Commons  and  the  House 
of  Lords.  This  is  also  quite  a  common  use,  though  still 
not  exact.  3.  The  word  means  the  Crown  and  the  two 
Houses,  as  is  shown  from  the  following  passage  from 
Dicey,  "Parliament  means,  in  the  mouth  of  a  lawyer 
(though  the  word  has  often  a  different  sense  in  ordinary 
conversation),  the  King,  the  House  of  Lords,  and  the 
House  of  Commons ;  these  three  bodies  acting  together 
may  be  aptly  described  as  the  '  King  in  Parliament,'  and 
constitute  Parliament."  ^ 

Ordinarily,  when  Parliament  is  called  the  agent  of  sov- 

1  The  Law  of  the  Constitution^  p.  36. 
0  17 


18  NATURE   OF  THE   ENGLISH  CONSTITUTION    chap,  ii 

ereign  power,  its  three  constituents  are  included.  Yet 
there  was  a  time  when  Parliament  declared  the  throne 
vacant  and  proceeded  to  fill  it  by  electing  William  and 
Mary  to  be  King  and  Queen.  This  has  always  been  re- 
i  garded  as  a  sovereign  act,  and  it  was  performed  by  the 
two  Houses  alone  without  a  king.  Ordinarily  an  act  of 
Parliament,  to  be  of  legal  force,  must  have  the  sanction  of 
the  two  Houses  and  the  King.  The  question  then  arises, 
How  can  such  an  institution  be  reconciled  with  the  theory 
that  sovereignty  belongs  primarily  to  the  voters  of  Eng- 
land, since  neither  the  King  nor  the  members  of  the 
House  of  Lords  are  chosen  by  popular  election  ?  The 
older  theory  was  that  real  sovereignty  was  vested  in  him 
who  was  called  sovereign,  and  that  he  called  to  his  aid 
the  chief  Lords  of  the  realm,  and  provided  for  the  periodic 
election  of  representatives  from  counties,  towns,  and  cities, 
to  supplement  the  work  of  the  King  and  the  Lords.  The 
theory  of  popular  sovereignty  takes  large  account  of  the 
fact  that  since  1688  all  the  monarchs  of  England  have 
occupied  the  throne  by  parliamentary  title.  And  since 
1832  it  has  been  thoroughly  established,  both  in  doctrine 
and  in  practice,  that  concerning  all  important  measures 
which  have  received  the  approval  of  the  House  of  Com- 
mons for  the  second  time  and  are  believed  to  be  in  accord 
■  with  the  wishes  of  a  considerable  majority  of  the  electors, 
\  the  House  of  Lords  shall  yield  to  the  Commons.^ 
\  The  people  do  not,  it  is  true,  vote  directly  for  members  of 
the  House  of  Lords,  but  so  long  as  they  permit  the  House 
to  exist,  which  according  to  the  theory  under  discussion 
they  might  abolish  at  any  time,  they  do  in  this  negative 
way  express  approval  of  its  continued  existence  and  of 
its  acts  taken  as  a  whole.  In  like  manner  kings,  while 
not  chosen  by  direct  act  of  the  electors,  nevertheless,  ac- 
cording to  the  modern  theory,  hold  their  office  subject  at 
1  Dicey,  The  Law  of  the  Constitution^  p.  359. 


CHAP.  II  THE   HOUSE  OF  COMMONS  19 

all  times  to  the  will  of  the  people.  An  act  to  abolish  the 
House  of  Lords,  or  to  reorganize  it  in  such  a  manner  as 
to  require  the  members  to  be  chosen  by  popular  election, 
would  be  accounted  not  an  act  of  revolution,  but  an  act  of 
reform.  Likewise,  an  act  to  abolish  the  Crown  or  to 
make  the  occupant  of  the  throne  subject  to  direct  elec- 
tion, would  be  simply  a  more  extensive  exercise  of  the 
power  already  exercised  by  the  Act  of  Settlement.  It 
will  be  observed  that  this  theory  tends  strongly  to  localize 
supreme  power  in  the  House  of  Commons. 

According  to  a  law  passed  in  1716  a  new  House  of  Com- 
mons must  be  elected  at  least  once  in  seven  years.  It  is 
estimated  that  a  little  more  than  one-sixth  of  the  entire 
population  have  a  right  to  vote  for  members  of  Parlia- 
ment. If  there  were  universal  manhood  suffrage,  the  pro- 
portion would  be  larger.  If  recent  tendencies  receive  no 
check,  it  is  not  at  all  unlikely  that  the  remaining  fraction 
of  adult  men  who  do  not  now  have  a  right  to  vote  will 
be  enfranchised.  There  were  in  the  House,  in  1896,  six 
hundred  and  seventy  members.  With  a  few  exceptions 
each  member  represents  one  district.  Parliamentary  dis- 
tricts vary  in  population  from  fifteen  thousand  to  eighty 
thousand.  Assuming  the  continuance  of  democratic  ten- 
dencies, the  districts  will  in  time  be  made  nearly  equal, 
and  the  House  will  thus  become  an  agency  for  the  equal 
representation  of  all  the  people,  regardless  of  class  or  con- 
dition. A  large  proportion  of  the  members  of  the  House 
do  not  reside  in  the  districts  which  they  represent.  If 
the  Irish  leader  wished  to  have  an  Englishman  chosen  to 
represent  an  Irish  district,  an  Englishman  would  be  chosen. 
Many  Englishmen  are  elected  by  Scottish  districts,  and 
conversely.  This  plan  makes  it  more  convenient  for  a 
man  to  choose  a  parliamentary  career  and  follow  it  for 
life.  If  he  fails  of  election  in  one  district,  he  may  find 
another  district  willing  to  elect  him.     A  really  influential 


^ 


20 


NATURE  OF  THE  ENGLISH  CONSTITUTION    chap,  ii 


? 


man  may  always  be  a  member  of  the  House.  For  example, 
/in  1887,  Mr.  Goschen  became  a  member  of  the  Cabinet. 
According  to  an  English  law  a  seat  in  the  House  of  Com- 
mons becomes  vacant  when  its  occupant  becomes  a  member 
of  the  Ministry.  Practical  convenience  also  requires  that 
a  member  of  the  Ministry  shall  also  be  a  member  of  Par- 
liament, otherwise  he  cannot  continue  in  office.  An  op- 
posing candidate  contested  the  seat  with  Mr.  Goschen 
and  defeated  him.  This  made  it  necessary  for  Mr. 
Goschen  to  find  a  constituency  elsewhere,  and,  having 
in  his  favour  the  influence  of  the  leaders  of  the  Con- 
servative party  who  wished  to  retain  him  in  office,  he 
encountered  no  difficulty  in  doing  so. 

The  most  important  and  characteristic  function  of  the 
House  of  Commons,  as  set  forth  by  recent  writers  on  the 
English  Constitution,  is  the  choosing  of  the  Executive. 
By  Executive  is  here  meant  the  chief  executive  and  ad- 
ministrative officers  numbering  fifteen,  more  or  less,  who 
are  individually  responsible  for  the  several  departments, 
and  collectively  responsible  for  the  conduct  of  the  public 
business.  This  body  is  called  the  Cabinet,  and  it  is  often 
spoken  of  as  a  committee  of  Parliament. ^  With  the  Cab- 
inet are  associated  about  thirty  other  executive  officers 
chosen  at  the  same  time  and  in  the  same  way.  The  term 
"  Ministry "  is  applied  to  the  Cabinet  and  the  other  ex- 
ecutive officers  taken  together.  Language  is  often  used 
which  leads  the  ill-informed  to  think  that  the  House  of 
Commons  elects  the  members  of  the  Cabinet ;  but  it 
does  nothing  of  the  sort.  When  one  Cabinet  resigns 
office,  it  is  customary  for  the  retiring  Prime  Minister, 
who  is  the  head  of  the  Cabinet,  to  nominate  a  successor. 
■(The  Queen  sends  for  the  one  nominated  and  asks  him  to 
termTa  new  Ministry,  and  the  Queen  then  fills  the  offices 
ujpon  his  recommendation.  Thus,  in  form,  it  is  the  Queen 
V  1  Bagehot,  Tlie  English  Constitution,  p.  79. 


JHAP.  fty"g|YY^^   HOUSE  OF  COMMONS  21 

''le^Mimstrjj^theHouse  takes  no  direct 


actiofnTTthe  matter. 

THe~  House  is  said  to  choose  the  Cabinet,  because  it 
must  have  the  approval  of  a  majority  of  the  House. 
If  at  any  time  a  majority  of  the  members  of  the  House 
become  dissatisfied  with  the  Ministry,  they  may  cause 
it  to  resign,  or  appeal  to  the  country,  either  by  a  formal 
vote  of  censure,  or  by  refusing  to  support  the  measures 
which  the  Cabinet  "deem  important."  It  is  in  this 
indirect  way  that  the  House  may  determine  who  shall 
hold  the  executive  offices.  But  when  the  House  fails 
to  give  due  support  to  the  Cabinet,  the  latter  may, 
before  resigning,  dissolve  Parliament  and  appeal  to  the 
electors  on  the  matter  at  issue.  If  the  voters  choose 
a  House  which  is  in  harmony  with  the  Cabinet,  the 
Ministry  do  not  resign.  In  this  way,  it  may  be  said 
that  the  electors  choose  the  Cabinet.  Again,  it  max_be_ 
said  that  the  members  of  the  dominant  party  choose  the 
Cabinet.  For  in  the  selection  of  party  associates  the 
Prime  Minister  is  bound  to  choose  such  men  as  are  accept- 
able to  the  party.  In  this  sense  the  party  chooses  the 
Executive. 

Again,  there  is  a  very  important  sense  in  which  the 
members  of  the  Cabinet  choose  themselves.  No  one  can 
be  chosen  as  party  leader  who  has  not  commended  him- 
self by  conspicuous  ability  or  influence  to  the  favourable 
consideration  of  his  party  associates.  The  leader  of  the 
political  party  is  generally  the  ablest  statesman  and  the 
most  skilful  politician  of  his  party.  It  probably  has  not 
happened  in  recent  years  that  one  has  become  Prime 
Minister  without  having,  himself,  for  years,  contemplated 
the  possibility  of  such  an  event.  In  America  it  is  said 
that  every  boy  expects  sometime  to  be  President ;  in  Eng- 
land only  the  few  who  believe  themselves  to  be  endowed 
with  superior  ability  expect  to  be  Prime  Ministers.     Yet 


22  NATURE   OF   THE   ENGLISH   CONSTITUTION    chap,  ii 

there  are  always  a  few  in  each  party  who  do  contemplate 
the  possibility,  and  these  school  themselves  for  the  posi- 
tion by  the  devotion  of  all  their  powers  to  the  service  of 
the  State.  Mr.  Gladstone  and  Mr.  Disraeli  were  never 
at  any  time  men  of  mere  ordinary'-  ability,  yet  they  were 
for  thirty  years  active  members  of  the  House  of  Commons 
before  they  became  leaders  of  their  parties  and  Prime 
Ministers  of  England.  They  were  finally  chosen  leaders 
because  they  had  made  themselves  leaders.  In  answer 
to  the  question.  Who  shall  lead  the  Liberal  party  in  the 
absence  of  Mr.  Gladstone  ?  a  member  of  the  House  named 
an  English  statesman,  and  said,  "  He  is  leader  whether  we 
will  or  not."  Thus  the  Prime TMinister  elects  himself  by 
making  himself  leader  of  his  party  and  winning  success  at 
the  polls  for  it.  In  like  manner  the  other  members  of 
the  Cabinet  choose  themselves  by  commending  themselves 
to  their  party  by  their  preeminent  ability  or  by  making 
themselves  leaders  of  influential  sections  of  their  party. 
A  few  years  ago  three  young  men  in  the  Tory  party  be- 
came exceedingly  troublesome  to  the  Tory  Cabinet.  The 
three  were  finally  all  taken  into  the  Cabinet  at  one  time. 
Two  of  the  three  have  since  had  the  honour  of  being  men- 
tioned as  possible  Prime  Ministers,  and  one  has  become 
the  leader  of  his  party  in  the  Commons.  These  young 
men  elected  themselves  to  Cabinet  rank.  One  of  the 
three  has  since  died ;  another  is  choosing  himself  for 
the  first  place  in  the  Cabinet;  that  is,  he  is  convincing 
the  members  of  his  party  that  he  represents  the  dominant 
political  force  in  the  party  and  in  the  country. 

From  the  foregoing  statements  it  appears  that  there, 
is  no  short  and  easy  answer  to  the  question.  Who  chooses 
the  English  Executiv-a?  A  complete  answer  to  this  ques^ 
/fiorT  involves  a  description  of  the  most  important  features 
of  the  English  Constitution.  First,  the  Queen  must 
appoint.     Second,  the  House  of  Commons  must  at  the 


CHAP.  II 


THE  HOUSE   OF  COMMONS  23    \ 


time  tacitly  approve  the  appointment  and  must  continue 
to  support  the  measures  of  the  Cabinet  so  long  as  it 
remains  in  office.  Third,  a  Cabinet  after  losing  the  con- 
fidence of  a  majority  in  the  House  may  dissolve  Parlia- 
ment and  go  to  the  electors  and  thus  secure  the  election 
of  a  House  that  will  support  it.  In  that  case  the  Cabinet 
continues  in  office  by  the  approval  of  the  electors  as  ex 
pressed  through  the  members  of  the  new  House.  Fourth, 
each  political  party  selects  a  leader  who  is  a  potential 
Prime  Minister,  and  it  also  chooses  a  leader  of  debate  in 
the  other  House.  These  have  much  to  do  in  determining 
who  shall  be  the  other  members  of  the  Cabinet.  Fifth, 
men  secure  Cabinet  rank  by  commending  themselves  to 
the  good  opinion  of  their  party.  Not  one  of  these  five 
acts  or  sets  of  acts  can  be  disregarded  in  answering  the 
question.  How  is  the  English  Executive  chosen? 

It  is  convenient  to  say  that  the  House  chooses,  because 
the  five  acts  are  chiefly  explained  by  what  takes  place  in 
the  House  of  Commons.  It  is  in  the  House  of  Commons 
rather  than  anywhere  else  that  a  man  commends  himself 
to  his  party  for  the  position  of  leader.  It  is  especially 
with  reference  to  the  conduct  of  business  in  the  House 
that  leaders  of  the  parties  are  selected.  The  electors  can 
choose  a  Cabinet  only  by  choosing  members  of  the  House. 
Through  the  management  of  the  business  of  the  House  a 
Cabinet  retains  its  position.  The  action  of  the  Queen  iri\ 
appointing  the  Cabinet  is  determined  on  the  advice  of  the  \ 
retiring  Premier  by  counting  the  members  of  the  two 
parties  in  the  House  of  Commons.  As  now  understood, 
the  action  of  the  Queen  is  merely  formal.  She  must 
choose  the  leader  of  the  party  having  a  majority  in  the  / 
House  of  Commons.  One  may  say  that  the  Ministry  is 
not  chosen  at  all  by  any  arbitrary  or  formal  act.  It  iis 
rather  evolved  by  a  number  of  acts  which  centre  in  the 
House  of  Commons. 


24  NATURE  OF  THE  ENGLISH  CONSTITUTION    chap,  ii 

One  cannot  understand  the  Constitution  and  the  practi- 
cal working  of  the  House  of  Commons  without  a  know- 
ledge of  the  political  parties  in  England ;  for,  in  each  of 
the  acts  which  result  in  the  selection  of  the  Executive, 
party  life  and  party  organization  are  assumed.  It  is  by 
counting  the  members  of  a  political  party  in  the  House 
that  the  information  is  derived  for  the  guidance  of  the 
Queen  in  the  selection  of  the  head  of  the  Cabinet.  It  is 
by  party  votes  in  the  House  that  the  Cabinet  is  sustained 
or  driven  from  office.  By  party  votes  in  the  country  a 
new  House  is  chosen.  A  man  is  elected  to  leadership  in 
a  party  before  he  is  chosen  as  Prime  Minister.  It  is  as 
members  of  the  political  parties  that  men  of  ability  secure 
for  themselves  Cabinet  rank.  Hence,  what  we  now  know 
as  the  English  Constitution  rests  upon  the  assumption 
that  the  voters  and  the  members  of  Parliament  will  con- 
tinue to  act  in  two  organic  political  parties.  A  change 
in  this  respect  would  necessitate  essential  changes  in  the 
Constitution. 

Some  events  in  recent  history  may  serve  to  illustrate 
this.  In  1885,  an  election  occurred  which  gave  to  the 
House  of  Commons  three  hundred  and  thirty-four  Lib- 
erals, two  hundred  and  fifty  Conservatives,  and  eighty-six 
Parnellites.  There  were  thus  three  parties,  neither  of 
which  commanded  a  majority  of  the  votes.  The  Con- 
servatives, who  at  the  time  held  the  executive  offices,  re- 
signed them  to  the  Liberals.  If  all  the  Irish  members  had 
united  with  the  Conservatives,  the  Liberals  could  have  been 
driven  from  office.  The  Irish  demanded,  as  a  condition 
of  alliance  with  either  party,  that  a  law  should  be  passed, 
giving  to  Ireland  a  separate  legislature  having  jurisdiction 
over  local  affairs.  Mr.  Gladstone  and  a  portion  of  the 
Liberal  party,  having  decided  to  accede  to  the  demands 
of  the  Irish  members,  brought  in  a  bill  for  Home  Rule  in 
Ireland.     All  the  Irish  members  voted  with  Mr.  Glad- 


CHAP.  II  THE   HOUSE   OF  COMMONS  25 

stone,  but  an  equal  number  of  the  Liberals  voted  against 
him  on  the  question  of  Home  Rule,  and  thus  secured  his 
defeat.  The  adoption  of  the  Home  Rule  issue  thus  led 
to  a  division  in  the  Liberal  party.  The  Liberals  who  re- 
fused to  support  the  Home  Rule  policy  of  the  party  were 
known  as  Liberal  Unionists,  and  for  a  time  they  were  not 
identified  with  either  party.  They  still  sat  with  the  Lib- 
erals in  Parliament,  but  refused  to  support  the  party  in 
its  chief  issue.  There  thus  appeared  two  minor  parties, 
four  parties  in  all,  and  the  minor  parties  included  so  many 
members  of  Parliament  that  it  seemed  impossible  for  either 
of  the  older  parties  to  secure  its  necessary  majority.  After 
his  defeat  on  the  Home  Rule  Bill  Mr.  Gladstone  dissolved 
Parliament  and  appealed  to  the  country  on  the  question  at 
issue.  As  a  result  of  this  election,  the  Conservatives  had 
three  hundred  and  sixteen  members,  the  Liberals  one  hun- 
dred and  ninety-two,  the  Parnellites  eighty-six,  and  the 
Liberal  Unionists,  who  opposed  Mr.  Gladstone's  bill,  sev- 
enty-six. There  were  thus  four  parties,  no  one  of  which 
commanded  a  majority  of  the  House.  It  was  now  under- 
stood that  the  Parnellites  would  vote  with  Mr.  Gladstone, 
but  this  would  still  leave  him  less  than  a  majority.  On  the 
main  question  at  issue  the  Liberal  Unionists  were  in  accord 
with  the  Conservatives.  A  majority  was  made  up  and  a 
Cabinet  was  formed,  the  Liberal  Unionists  agreeing  to  vote 
with  the  Conservatives.  In  this  way  the  four  parties,  so 
far  as  the  practical  working  of  the  House  of  Commons  was 
concerned,  were  reduced  to  two,  and  the  Government  pro- 
ceeded in  a  regular  and  constitutional  way. 

This  division  into  two  parties  extends  beyond  Parlia- 
ment to  the  constituencies.  In  the  period  referred  to,  but 
two  candidates  appeared  in  most  of  the  districts.  If  a 
Conservative  was  nominated,  the  Liberal  Unionists  of  the 
district  voted  for  him.  If  a  Liberal  Unionist  was  nomi- 
nated, the  Conservatives  supported  him.     In  like  manner 


\ 


26  NATURE  OF  THE  ENGLISH  CONSTITUTION    chap,  n 

/ 

a  Liberal  and  a  Parnellite  did  not  stand  as  candidates  in 

the  same  district.  In  1892  another  election  occurred.  At 
this  time  Conservatives  and  Liberal  Unionists  had  become 
practically  fused  into  one  party.  The  Liberals,  with  the 
support  of  the  Irish  members,  had  a  majority  in  the  House 
of  Commons.  Mr.  Gladstone  was  thus  able  to  form  a 
government.  A  second  Home  Rule  Bill  was  introduced 
and  carried  through  the  House  of  Commons,  but  was  re- 
jected by  the  House  of  Lords.  Another  election  occurred 
in  1895,  which  resulted  in  the  triumph  of  the  Conservative 
Unionist  party.  The  various  parties  are  again  practically 
reduced  to  two,  and  this  feature  of  the  Constitution  re- 
mains unchanged. 

We  have  thus  seen  how  the  House  of  Commons  per- 
forms one  of  its  functions,  that  of  choosing  the  Executive. 
But  when  the  Cabinet  is  chosen,  the  House  is  by  no  means 
rid  of  it.  Some  .membera  of  the  Cabinet  are  always  mem- 
bers of  the  House  of  Lords,  but  the  most  important 
business  of  the  Cabinet  is  in  the  Commons,  and  the 
most  efficient  members  are  members  of  the  Commons. 
In  an  important  sense  the  Cabinet  for  the  time  being  is 
master  of  the  House.  Its  members  who  are  members  of 
the  House  sit  on  the  front  bench  to  the  right  of  the 
Speaker.  This  is  called  the  Government  Bench,  and  the 
Cabinet  is  called  the  Government.  The  members  of 
the  political  party  that  supports  the  Cabinet  occupy  the 
other  benches  on  the  right  of  the  Speaker.  Across  the 
table,  facing  the  Government,  is  what  is  called  "  The  Front 
Opposition  Bench."  This  bench  is  occupied  by  the  men 
who  expect  to  form  a  Cabinet  as  soon  as  they  can  per- 
suade a  majority  of  the  House  or  a  majority  of  the  con- 
stituencies to  vote  against  the  ruling  Cabinet.  These  are 
called  "Leaders  of  the  Opposition."  The  other  benches 
to  the  left  of  the  Speaker  are  occupied  by  the  members 
yof  the  party  that  votes  against  the  Government.     Irish 


CHAP.  II  THE   HOUSE   OF   COMMONS  27 

Nationalist  members  of  the  House,  however,  continue  to 
sit  on  the  Opposition  side  whatever  the  Government  in 
power.  When  a  Cabinet  is  driven  from  office  and  a 
new  one  is  formed,  the  parties  change  sides  on  the  floor 
of  the  House.  Thus  the  members  always  sit  facing  their 
political  opponents. 

Law-making  in  the  House  is  divided  into  two  classes,  — 
^Cabinet  and  non-Cabinet  legislation.  Cabinet  bills  are 
the  result  of  the  deliberations  of  the  Cabinet.  They  are 
usually  the  more  important  bills,  and  are  those  of  chief 
political  interest.  Every  member  of  the  Cabinet  is  bound 
to  vote  for  all  the  measures  of  which  the  Cabinet  assumes 
the  responsibility.  However  the  members  of  the  Govern- 
ment may  differ  in  their  secret  Cabinet  meetings,  before 
Parliament  and  before  the  country  they  stand  as  a  unit. 
When  a  Government  bill  is  introduced  by  a  member  of 
the  Cabinet,  the  chief  speeches  in  its  favour  are  made  by 
members  of  the  Cabinet,  and  the  chief  speeches  by  way 
of  criticism  are  usually  made  by  the  leaders  of  the  Oppo- 
sition. As  a  result  of  discussion  and  criticism  the  Cabi- 
net may  be  induced  to  accept  amendments  to  their  bills. 
If  an  important  amendment  is  offered  by  a  member  of  the 
Opposition,  it  is  the  policy  of  the  Government,  if  they 
fear  that  the  amendment  will  be  carried,  to  forestall 
defeat  by  accepting  the  amendment.  Yet  even  after  an 
amendment  has  been  carried  against  them,  the  Govern- 
ment may  rule  that  it  is  not  vital  to  the  bill  as  a  whole, 
and  refuse  to  resign.  Every  defeat  of  this  sort,  however, 
tends  to  weaken  and  discredit  the  Cabinet.  Members  of 
the  Opposition  and  the  Opposition  press  are  sure  to  claim 
at  such  a  time  that  the  Government  is  violating  the  Con- 
stitution by  clinging  to  office  after  being  defeated. 

Of  course  the  Government  would  not  at  any  time  be 
defeated  on  any  measure  or  vote  if  the  entire  party  were 
always  at  hand  and  all  the  members  of  it  voted  with  the 


28  NATURE   OF  THE  ENGLISH  CONSTITUTION    chap,  ii 

Cabinet.  It  often  happens  that  members  of  the  party  are 
greatly  opposed  to  some  features  of  the  Government  policy, 
and  feel  strongly  inclined  to  abstain  from  voting  or  to  vote 
with  the  Opposition.  This  they  can  often  do  and  still 
not  endanger  the  life  of  the  Cabinet.  But  such  action 
always  annoys  the  Cabinet.  The  Government  has  one 
pretty  effectual  way  of  bringing  to  its  support  the 
membership  of  its  party.  It  may  definitely  give  notice 
that  the  particular  measure  which  is  in  hand  is  "  deemed 
/important"  and  that  the  Government  proposes  to  stand 
/  or  fall  with  it.  This  is  a  notice  to  the  members  of  the 
I  party  that  if  they  do  not  vote  with  the  Cabinet,  they 
will  have  to  incur  the  expense  and  the  inconvenience  of 
\a  reelection  to  Parliament;  and  all  who  represent  dis- 
Wicts  having  small  party  majorities  are  confronted  with 
the  prospect  of  possible  or  probable  defeat.  By  this 
and  other  means  a  skilful  Cabinet  musters  the  forces  of 
the  party  to  support  its  measures.  By  parliamentary 
custom  Wednesday  of  each  week  is  devoted  to  the  uses 
of  private  members  and  for  bills  introduced  by  non- 
Cabinet  members  :  the  Cabinet  assumes  no  responsibility, 
^any  of  these  bills,  however,  involve  legislation  of  great 
importance.  They  come  from  either  side  of  the  House, 
and  in  respect  "to  such  bills  the  members  of  the  Cabinet 
are  generally  free  to  take  any  position  they  please.  Yet 
if  a  private  member  should  introduce  a  bill  the  subject- 
matter  of  which  trenched  upon  some  measure  for  which 
the  Government  held  itself  responsible,  then  the  Cabinet 
would  either  adopt  the  measure  as  its  own,  or  would 
insist  upon  amending  it  in  such  a  manner  as  to  harmonize 
it  with  its  own  policy,  or  would  unite  in  using  its  majority 
to  defeat  the  bill. 

It  thus  appears  that  in  a  certain  sense  the  Cabinet  is 
responsible  for  the  entire  business  of  the  House.  It  de- 
termines what  shall  be  accounted  Government  business 


CHAP.  II  THE   HOUSE   OF  COMMONS  29 

and  what  shall  be  left  to  private  members.  At  any  time 
the  Government  may  determine  to  assume  the  responsi- 
bility for  a  private  bill,  or  to  use  its  majority  to  destroy 
it.  Or  the  Government  may  decide  to  take  for  its  own 
measures  the  time  ordinarily  allotted  to  private  members. 
In  thus  partitioning  the  business  between  itself  and  pri- 
vate members  the  Cabinet  is  guided  by  the  state  of  politi- 
cal debate  among  the  electors.  For  example,  a  bill  may 
be  regarded  as  in  itself  of  the  utmost  consequence,  yet  if 
there  is  little  interest  manifested  in  the  measure,  it  is 
likely  to  be  left  to  take  its  chances  as  a  private  bill.  On 
the  other  hand,  a  measure  in  itself  trivial  may  have  at- 
tracted such  an  amount  of  public  attention  as  to  induce 
the  Government  to  adopt  it.  Yet  in  general  it  is  true 
that  the  measures  of  greatest  popular  interest  are  those 
of  greatest  importance.  Hence  the  Government  bills  are 
usually  those  of  chief  importance. 

From  the  foregoing  description  of  the  law-making  func- 
tions of  the  House  of  Commons  it  appears  that  the  mem- 
bers of  the  English  Executive  are  not  only  members  of 
the  legislature,  but,  for  the  time  being,  are  masters  of  the 
power  of  legislation.  There  are  thus  united  in  the  same 
hands  the  powers  of  responsible  administration  and  of 
legislation.  When  an  English  Cabinet  loses  its  power  to 
control  legislation,  it  resigns  the  executive  offices,  and 
they  are  placed  in  the  hands  of  a  Government  which  can 
control  legislation.  It  is  an  important  feature  of  the  Eng- 
lish Constitution  that  the  control  of  administration  and 
the  control  of  legislation  shall  be  in  the  same  hands. 

Financiering  is  conveniently  discussed  as  a  separate  and 
important  function  of  the  House  of  Commons.  Much 
of  the  discussion  of  this  subject  belongs  rather  to  the 
science  of  administration  than  to  the  harmonizing  and 
balancing  of  the  separate  agencies  which  we  in  America 
call  the  Constitution.     But  one  feature    of   financiering 


30  NATURE   OF  THE   ENGLISH  CONSTITUTION    chap,  ii 

is  full  of  constitutional  interest.  It  is  when  the  Cabinet 
is  securing  a  vote  of  supplies  to  meet  the  expenses  of  the 
Government  that  the  various  departments  of  the  Executive 
come  regularly  before  the  House  of  Commons  for  criti- 
cism. It  is  the  business  of  the  Opposition  to  call  atten- 
tion to  every  weak  point  in  the  conduct  of  the  Executive 
and  to  persuade  the  House  not  to  vote  supplies  except 
upon  condition  of  improvement  in  administration.  I  have 
said  that  in  the  matter  of  law-making  the  Cabinet  is 
master  of  the  House  of  Commons.  It  may  easily  be 
shown  that,  in  a  certain  sense,  the  House  is  master  of  the 
Cabinet.  The  Opposition  in  the  House  is  constantly 
forcing  the  Government  to  modify  its  administrative 
policy;  and  never  does  a  Cabinet  succeed  in  getting  its 
Budget  through  the  House  without  being  compelled  by 
adverse  criticism  to  make  many  changes  and  concessions. 
The  Budget  often  contains  some  new  feature  of  taxation 
in  which  an  influential  class  of  taxpayers  is  interested; 
and  the  Opposition  in  the  House  is  reinforced  by  an  agita- 
tion among  the  electors.  In  1888  the  Budget  contained  a 
provision  for  taxing  vehicles,  called  "  The  wheel  and  van 
tax."  There  was  an  agitation  throughout  the  country 
against  this  tax,  terminating  in  a  grand  demonstration  in 
Hyde  Park,  and  the  Government  receded  from  its  posi- 
tion. In  1890  the  Budget  contained  a  provision  that  a 
portion  of  the  license  fees  collected  from  dealers  in  alco- 
holic liquors  should  be  set  aside  to  be  used  in  giving  com- 
pensation to  dealers  whose  business  should  be  destroyed 
by  the  refusal  of  county  boards  to  renew  licenses.  This 
led  to  such  an  agitation  in  the  House  and  in  the  country 
as  induced  the  Cabinet  to  abandon  the  measure.  It 
should  not  be  understood  that  it  is  only  in  respect  to 
financial  bills  that  the  habit  of  overawing  the  Cabinet 
prevails.  Any  bill  which  the  Government  introduces  is 
liable  to  contain  provisions  which  elicit  such  a  formidable 


CHAP.  II  THE   HOUSE   OF  COMMONS  31 

opposition  as  to  induce  the  Cabinet  to  yield.  The  Cabinet 
retains  its  mastery  of  the  House  by  yielding  to  the  wishes 
of  the  House,  by  being  ever  sensitive  to  the  scourge  of 
public  opinion,  by  avoiding  scandal  in  the  conduct  of 
public  business ;  in  a  word,  by  representing  the  judgment 
of  the  country. 

Another  feature  of  the  business  of  the  House  has  some 
constitutional  importance.  That  is  the  daily  questionings 
to  which  the  Government  members  are  subjected.  Any 
member  has  a  right  to  ask  any  question  he  pleases  con- 
cerning the  conduct  of  public  business.  These  questions 
are  printed  on  the  paper  containing  the  order  of  business 
for  the  day,  and  they  are  addressed  to  that  member  of  the 
Government  who  is  deemed  chiefly  responsible  for  the 
business  which  is  made  the  subject  of  inquiry.  That  is, 
if  it  pertains  to  the  government  of  Ireland,  it  is  addressed 
to  the  Chief  Secretary  for  Ireland ;  or,  if  the  intention  or 
conduct  of  the  Cabin*et  as  a  whole  is  made  the  subject  of 
inquiry,  the  question  is  directed  to  the  Leader  of  the 
House.  By  this  arrangement  every  member  of  the  Cabi- 
net and  of  the  Ministry  in  the  House  of  Commons  lives 
in  the  daily  prospect  of  being  called  to  account  before  the 
country  for  any  misconduct  in  his  department.  If  a 
policeman  has  unduly  interfered  with  the  rights  of  a  citi- 
zen, the  Home  Secretary  may  be  asked  to  explain.  If  a 
postmaster  has  neglected  his  duty,  the  Postmaster-General 
may  be  called  to  an  account  for  it.  In  this  way  the  pub- 
lic is  informed  from  original  sources  of  the  conduct  of 
public  business.  The  public  is  thus  brought  into  very 
close  relations  with  the  powers  of  government.  Many  of 
the  questions  are  asked  for  the  purpose  of  calling  atten- 
tion to  some  weak  point  in  the  policy  of  the  Government. 
Yet  it  sometimes  happens  that  a  member  of  the  Cabinet 
wishes  to  have  an  opportunity  of  explaining  some  matter 
connected  with  his  department.     In  such  a  case  he  may 


32  NATURE   OF  THE   ENGLISH   CONSTITUTION    chap,  ii 

induce  a  personal  or  party  friend  to  ask  him  a  question  in 
the  House  and  thus  furnish  him  the  desired  opportunity. 
The  constitutional  importance  of  the  Question  is  found  in 
the  fact  that  it  is  a  channel  of  influence  connecting  the 
Cabinet  with  the  House  and  both  with  the  public. 


CHAPTER  III 

CHECKS   AND   BALANCES 

BEFORE  proceeding  to  discuss  the  House  of  Lords, 
the  Crown,  and  the  less  important  parts  of  the 
English  government,  it  is  well  to  get  as  clear  a  view  as 
possible  of  the  Constitution  on  the  assumption  that  the 
House  of  Commons  stands  alone,  i.e.  that  the  less  impor- 
tant parts  do  not  exist.  This  is  the  more  important 
because  it  is  coming  more  and  more  to  be  the  habit  of 
English  writers  to  discuss  the  Constitution  on  the  basis 
of  such  an  assumption.  In  the  Edinburgh  Review  for 
July,  1890,  there  is  an  article  entitled  "  The  House  of 
Commons  Foiled."  It  is  a  criticism  on  the  current  ob- 
structive policy  of  the  Opposition  in  the  House  of  Com- 
mons. But  it  is  also  a  grave  constitutional  discussion, 
and  there  is  in  it  little  to  suggest  that  there  exists  any 
constitutional  force  outside  of  the  House  of  Commons. 
In  nearly  every  sentence  where  the  word  "  Parliament " 
occurs  "  House  of  Commons  "  may  be  substituted  without 
changing  the  meaning.  The  Duke  of  Devonshire  is 
quoted  as  saying,  "A  manifest  determination  to  destroy 
and  to  cripple  parliamentary  institutions  would  be  as 
clearly  rebellion  against  our  Constitution  as  open  resist- 
ance to  the  Crown."  The  writer  of  the  article  continues, 
"  Parliament  is  king;  it  is  the  modern  embodiment  of  the 
power  of  the  nation;  internal  attempts  to  deprive  it  of  its 
strength  are  aimed  against  that  very  sovereignty  of  the 
people  which  it  is  the  boast  of  our  reformers  to  have 
D  33 


34  NATURE   OF   THE   ENGLISH   CONSTITUTION    chap,  in 

established  on  a  truly  democratic  basis."  It  seems  evi- 
dent that  in  the  thought  of  the  writer  the  House  of  Com- 
mons is  king. 

Now  upon  the  assumption  that  the  House  of  Commons 
embodies  all  constitutional  power,  what  sort  of  Constitu- 
tion does  England  possess  ?  As  stated  in  a  former  chap- 
ter, if  in  such  a  case  the  House  acted  together  as  one 
undivided  body  or  committee,  it  would  be  difficult  for  an 
American  to  discover  anything  which  he  could  call  a  con- 
stitution. A  constitution,  as  the  word  is  used  in  America, 
assumes  the  division  of  powers  and  the  balancing  of  one 
power  against  another.  But  the  House  of  Commons  does 
not  act  together  as  a  committee.  There  are  the  two  po- 
litical parties  which  face  each  other  on  the  floor  of  the 
House.  Each  of  these  parties  is  subdivided  into  the  lead- 
ers and  the  led.  One  set  of  these  leaders  fills  the  chief 
executive  offices  and  is  called  the  Government.  Outside 
of  the  House  is  a  body  of  electors  whose  political  activity 
often  determines  the  policy  of  the  Government,  and  who 
may  at  any  time  be  called  upon  to  arbitrate  between  the 
contending  parties  in  the  House. 

These,  then,  are  so  many  diverse  sources  of  power  and 
influence.  Yet  we  seek  in  vain  for  an  explicit  legal 
recognition  of  these  sources  of  power. ^  No  English  law 
recognizes  the  division  of  the  House  into  parties.  No 
law  takes  any  account  of  the  subdivision  of  each  party 
into  leaders  and  non-leaders.  The  executive  offices 
which  the  members  of  the  Cabinet  fill  are  the  creation 
of  law,  but  the  Cabinet  itself  has  no  legal  recognition. 
The  body  of  electors  is  a  creature  of  law,  yet  their  impor- 
tant constitutional  function  as  arbiter  between  the  parties 
is  unknown  to  the  law. 

That  feature  of  the  American  Constitution  which  par- 
cels out  power  to  separate,  legally  established  govern- 
1  Professor  Ilearn,  The  Government  of  England^  p.  124. 


CHAP.  Ill  CHECKS  AND  BALANCES  36 

mental  agencies  may  not  be  discovered  in  the  political 
forces  centring  in  the  House  of  Commons.  The  preven- 
tion of  encroachments  and  the  harmonizing  of  govern- 
mental agencies  has  been  set  forth  as  the  main  object  of 
the  American  Constitution.  It  is  possible  to  apply  this 
form  of  words  to  the  different  agencies  in  the  House  of 
Commons  and  the  electorate.  There  is  in  these  separate 
governmental  agencies  an  extensive  system  of  checks  and 
balances.  The  party  of  the  Opposition  checks  and  modi- 
fies in  many  ways  the  action  of  the  party  of  the  Govern- 
ment. The  Cabinet  is  checked  and  restrained  by  the 
membership  of  its  own  party  in  the  House  outside  the 
Cabinet.  The  rank  and  file  of  the  party  in  the  House  are 
restrained  by  the  attitude  of  the  Cabinet.  The  electors 
are  ready  at  any  time  to  rebuke  the  Cabinet  or  to  rebuke 
the  Opposition  if  a  policy  is  adopted  which  they  seriously 
disapprove.  In  America  the  essence  of  the  Constitution 
is  found  in  a  vast  system  of  legally  established  checks  and 
balances ;  in  England  the  essence  of  the  Constitution  is 
found  in  a  limited  system  of  checks  and  balances  which, 
though  they  are  without  legal  recognition,  rest  upon  cer- 
tain habits  and  understandings  which  are  not  easily 
defined,  and  cannot  be  enforced  in  any  way  other  than 
by  an  appeal  to  public  opinion. 

That  these  understandings  in  accordance  with  which 
the  agencies  of  government  are  balanced  and  harmonized 
are  fundamental  in  the  English  Constitution  may  be  seen 
by  carefully  marking  the  language  of  the  best  expositors. 
It  has  already  been  shown  how  the  present  Constitution  is 
destroyed  by  assuming  the  non-existence  of  the  division 
into  two  parties.  In  this  I  have  followed  Bagehot,  who 
is  accepted  as  one  of  the  very  highest  authorities.^  The 
meaning  here  is  that  if  we  cannot  have  one  party  pitted 
against  the  other,  the  English  Constitution  cannot  exist  : 

1  English  Constitution,  p.  209. 


86  NATURE   OF  THE  ENGLISH  CONSTITUTION    chap,  m 

the  balance  of  forces  would  be  destroyed.  In  the  article 
in  the  Edinburgh  Review  from  which  I  have  quoted,  the 
House  of  Commons  is  criticised  for  undertaking  to  con- 
trol too  minutely  the  action  of  the  Executive.  "  Such  a 
body,"  says  the  writer,  "  can  only  judge  satisfactorily  of 
broad  lines  of  policy,  or  of  cases  of  flagrant  mismanage- 
ment."^ It  is  argued  that  it  is  a  violation  of  the  Con- 
stitution for  the  House,  as  a  whole,  to  encroach  upon  the 
field  of  the  Executive.  If  this  is  carried  too  far,  execu- 
tive responsibility  will  end,  and  the  Constitution  will 
thus  be  destroyed.  By  the  same  line  of  reasoning  it  may 
be  shown  that  the  Constitution  would  be  impaired  if  the 
electors  should  encroach  too  much  upon  the  business  of 
the  House.  Or,  if  a  Cabinet  should  dominate  the  House 
and  the  constituencies,  the  balance  of  forces  would  be 
destroyed,  and  an  oligarchy  would  ensue.  The  Constitu- 
tion then,  viewed  simply  as  a  combination  of  the  forces 
which  centre  in  the  House  of  Commons,  consists  of  cer- 
tain habits,  customs,  and  understandings  in  accordance 
with  which  the  separate  parts  are  harmonized  and  pre- 
vented from  mutual  encroachments. 

It  is  natural  for  an  American  to  ask,  How  are  the  pro- 
visions of  the  English  Constitution  enforced  ?  or,  is  there 
any  way  to  prevent  encroachment?  In  America,  when 
the  Constitution  is  violated,  the  law  is  violated,  and  there 
is  at  hand  a  court  and  a  sheriff  to  right  the  wrong.  In 
respect  to  all  these  constitutional  understandings  which 
cluster  around  the  House  of  Commons,  not  one  of  them 
admits  of  enforcement  in  the  American  sense  of  the  word. 
The  Englishman  must  trust  simply  and  solely  to  the  state 
of  mind  of  the  various  persons  who  exercise  the  functions 
of  government. 2    It  would  be  intolerable  for  an  American 

1  See  also  Mill,  Hepresentative  Government,  pp.  114-118,  and  Sidgwick, 
Elements  of  Politics,  pp.  406-409. 

2  Mr.  Gladstone  says  of  the  British  Constitution,  "It  presumes  more 


CHAP.  Ill  CHECKS  AND   BALANCES  37 

to  be  compelled  to  commit  his  fortune  and  his  family  to 
the  protection  of  such  a  Constitution.  The  American  has 
never  put  such  confidence  in  man.  He  has  placed  over 
his  head  a  good  deal  of  governmental  architecture.  He 
would  not  easily  be  persuaded  to  trust  his  all  to  the  ability 
of  a  few  groups  of  men  to  preserve  perpetually  a  balance 
of  forces  so  delicate  that  they  do  not  admit  of  intelligent 
definition.  The  English  have  never  deliberately  com- 
mitted themselves  to  such  a  constitution.  It  has  come 
to  them  as  a  result  of  forces  which  they  could  not  or  did 
not  choose  to  control.  The  English  are  as  courageous 
under  their  Constitution  as  are  Americans  under  theirs, 
yet  they  are  obliged  to  put  confidence  in  men  as  the 
Americans  do  not.  I  once  tried  to  point  out  to  a  Bir- 
mingham Radical  the  perils  of  the  English  Constitution. 
He  replied  that  every  Englishman  was  at  heart  Conserva- 
tive ;  that  this  was  as  true  of  the  labouring  man  as  of  the 
nobility.  The  checks  which  the  American  expects  to 
enforce  by  judicial  process  the  Englishman  expects  to 
maintain  by  the  state  of  mind  of  the  citizen. 

The  thing  that  I  wish  to  make  clear  in  this  discussion 
is  that  both  in  English  and  American  Constitutions  are 
found  systems  of  checks  and  balances.  When  Mr.  Bage- 
hot  argues  that  the  English  Constitution  is  without 
checks  and  balances,  he  means  that  it  is  without  legal 
and  authoritative  checks.  Yet  no  writer  has  more  clearly 
set  forth  those  modifying  influences  which  I  have  here 
called  checks  than  Mr.  Bagehot.  Mr.  Hearn  attaches  a 
great  deal  of  importance  to  parliamentary  practice  as  a 
constitutional  factor.  It  is  important  because  it  has 
served  as  a  check  upon  hasty  legislation.  ^  Mr.  Hearn 
quotes  Bentham  as  calling  this  "  the  original  seed-plot  of 

boldly  than  any  other  upon  the  good  sense  and  good  faith  of  those  who 
work  it."  Gleanings,  1,  p.  245,  quoted  by  Hearn,  The  English  Govern' 
ment,  p.  190.  i  The  Government  of  England,  p.  556. 


38  KATURE  OF  THE  ENGLISH  CONSTITUTION    chap,  iii 

English  liberty."  Yet,  since  Hearn's  book  was  written 
this  important  constitutional  barrier  has  been  much  weak- 
ened. The  rules  of  the  House  formerly  gave  unlimited 
time  for  debate  ;  they  protected  each  member  in  his  right 
to  take  part  in  the  business.  But  this  is  so  no  longer. 
It  would  be  difficult  to  find  a  better  illustration  of  the 
fact  that  the  English  Constitution  rests  for  its  support 
simply  upon  the  state  of  mind  of  the  men  who  govern, 
than  may  be  found  in  the  recent  history  of  parliamentary 
practice.  About  1878  a  few  Irish  members  determined 
that  they  would  prevent  legislation  for  other  parts  of  the 
United  Kingdom  till  certain  measures  were  carried  for 
Ireland.  The  rules  of  the  House  made  it  possible  for 
them  to  carry  their  plans  into  effect.  This  was  the  be- 
ginning of  that  sort  of  obstruction  which  the  Duke  of 
Devonshire,  in  a  sentence  already  quoted,  calls  "  rebellion 
against  our  Constitution."  The  rules  of  the  House  could 
stand  unchanged  so  long  as  all  the  members  of  the  House 
maintained  a  reasonable  degree  of  consideration  for  the 
wishes  of  their  associates.  By  their  obstructive  policy 
the  Irish  compelled  attention,  and  forced  from  the 
majority  many  concessions.  But  this  is  legislation  by 
minorities,  or  it  is  legislation  by  physical  force,  and  the 
policy  has  resulted  in  the  destruction  of  that  feature  of 
the  Constitution  which  formerly  served  as  a  check  against 
the  too  hasty  action  of  the  majority.  The  rules  of  the 
House  have  now  been  changed  so  as  to  give  to  the  major- 
ity the  power  to  close  debate. 

The  Irish  members  resisted  the  first  amendments  to 
the  rules.  These  required  the  Speaker  to  first  express 
the  opinion  that  the  majority  of  the  House  wished  to 
close  debate.  Then  two  hundred  members  must  vote 
with  the  majority  for  closure.  But  when  in  1888  the 
Conservative  Government  introduced  a  proposition  to 
amend  the  rules  so  that  without   the   initiative  of   the 


CHAP.  Ill  CHECKS  AND  BALANCES  39 

Speaker  the  majority,  supported  by  only  one  hundred 
votes,  could  close  debate,  the  Irish  leaders  supported  the 
measure.  One  of  them,  Mr.  Dillon,  expressed  surprise 
that  such  a  proposition  should  come  from  a  Tory  Govern- 
ment. He  had  supposed  that  the  Tories  were  opposed  to 
hasty  and  radical  changes  in  the  English  Constitution. 
Mr.  Dillon  declared  himself  in  favour  of  the  measure 
because  he  was  in  favour  of  speedy  and  radical  changes. 
He  referred  to  the  policy  of  Home  Rule  which  the  Liberal 
party  at  that  time  had  espoused.  Obstruction  served 
the  purposes  of  the  Irish  members  when  they  stood  alone, 
but  with  the  prospect  of.  having  a  majority  of  the  House 
to  support  their  policy  it  was  equally  to  their  advantage 
to  have  the  power  to  prevent  delay.  With  this  change 
in  the  rules  an  ancient  barrier  to  hasty  legislation  dis- 
appears. From  what  has  been  said  and  from  what  remains 
to  be  stated,  it  will  be  seen  that  in  so  far  as  the  English 
Constitution  is  democratic  it  is  without  legal  checks. 
The  checks  and  balances  which  belong  to  the  new  Consti- 
tution arise  from  habits,  and  customs,  and  understandings. 
The  legal  checks  which  remain  are  not,  in  form  at  least, 
democratic.  They  are  survivals  of  the  earlier  Consti- 
tution. 


6 


CHAPTER  IV 

THE  HOUSE  OP  LORDS 

^T^HIS  discussion  of  the  English  Constitution  has  hith- 
-*-  erto  proceeded  upon  the  assumption  that  all  powers 
rest  with  the  Commons,  and  almost  wholly  ignoring,  for 
the  time  being,  the  existence  of  the  House  of  Lords. 
That  body  is  now  to  be  considered. 

The  membership  of  the  House  of  Lords  is  more  com- 
plex than  is  that  of  the  House  of  Commons.  There 
are,  first,  Lords  Spiritual  and  Lords  Temporal.  The 
Lords  Spiritual  consist  of  the  Archbishop  of  Canter- 
bury, the  Archbishop  of  York,  the  Bishops  of  London, 
Durham,  and  Winchester,  and  twenty-one  senior  Bishops 
of  the  Church  of  England.  These  all  become  members 
of  the  House  of  Lords  by  virtue  of  occupying  a  church 
office  or  appointment  to  one.  Appointment  to  any  one 
of  the  five  chief  bishoprics  confers  the  privilege  of  a 
seat  in  the  House  of  Lords.  Of  the  remaining  twenty- 
one,  those  who  have  longest  held  a  bishopric  are  entitled 
to  seats.  When  one  of  the  twenty-one  dies  or  retires, 
the  bishop  who  has  been  longest  in  office  succeeds  to 
the  privilege.  According  to  an  ancient  theory  of  the 
Constitution,  all  the  people  of  England  belong  to  the 
one  Established  Church,  and,  in  harmony  with  this  theory, 
the  Bishops  in  the  Upper  House  are  held  to  represent 
the  moral  and  religious  interests  of  the  people.  They 
also  directly  represent  the  clerical  estates  of  the  realm. 
In  Scotland  the  laws  recognize  one  of  the  Presbyterian 

40 


CHAP.  IV  THE   HOUSE   OF  LORDS  41 

Churches  as  the  Established  Church,  and  in  Ireland, 
where  a  majority  of  the  people  are  Roman  Catholics,  no 
church  has  been  recognized  by  law  since  1869  as  forming 
a  part  of  the  government.  From  Scotland  and  Ireland, 
therefore,  there  are  no  Spiritual  Peers. 

The  Temporal  Peers  include  four  hundred  and  ninety- 
six  Peers  of  England  and  of  Great  Britain  (there  are 
besides  fourteen  peers  who  are  minors,  and  not  yet  en- 
titled to  seats  in  the  House),  sixteen  Scottish  Peers, 
twenty-six  Irish  Peers  (the  legal  number  of  Irish  Peers 
is  twenty-eight,  but  at  the  date  of  writing,  1896,  two  of 
the  number  had  been  created  Peers  of  Great  Britain),  and 
four  Lords  of  Appeal,  often  called  the  Law  Peers.  The 
four  Law  Peers  are  appointed  for  life,  and  they,  together 
with  the  Lord  Chancellor,  who  is  the  presiding  officer, 
and  the  ex-Lord  Chancellors  attend  to  the  judicial  busi- 
ness of  the  House.  The  sixteen  Scottish  Peers  are  chosen 
by  the  entire  body  of  the  Scottish  peerage  from  among 
their  own  number,  and  hold  office  during  one  term  of 
Parliament ;  that  is,  the  term  of  a  Scottish  member 
corresponds  to  that  of  a  member  of  the  House  of  Com- 
mons. The  Irish  members  are  likewise  elected  by  all  the 
Irish  Peers  from  among  their  own  number,  but  they  hold 
office  for  life.  An  election  occurs  only  in  case  of  vacancy 
caused  by  death.  Scotch  and  Irish  Dukes,  Marquises,  and 
Earls  usually  sit  nominally  as  Barons  or  Viscounts,  etc.,  in 
the  Peerage  of  Great  Britain  or  England.  The  entire  Eng- 
lish Peerage  and  the  Peerage  of  Great  Britain  are  members 
of  the  House  of  Lords.  Of  these  there  were,  in  1896, 
five  Princes  of  the  Blood,  twenty-one  Dukes,  twenty-two 
Marquises,  one  hundred  and  eighteen  Earls,  twenty-seven 
Viscounts,  and  three  hundred  and  three  Barons  :  in  all, 
four  hundred  and  ninety-six.  Baronets  are  not  regarded 
as  nobles,  and  have  only  the  title  "Sir."  Thus,  in  gen- 
eral, those  who  in  their  own  right  belong  to  the  titled 


42  NATURE  OP  THE  ENGLISH  CONSTITUTION    chap,  iv 

nobility  are  members  of  the  House  of  Lords  and  constitute 
the  Peerage. 

One  who  is  by  right  a  Peer  cannot  hold  a  seat  in  the 

/House  of  Commons.  But  there  are  many  members  of 
the  Commons  who  are  called  Lords.  This  arises  from 
the  fact  that  sons  of  Peers  above  the  degree  of  a  baron 
commonly  enjoy  the  use  of  a  title  by  courtesy.  If  the 
Marquis  of  Hartington  had  been  a  marquis  in  his  own 
right,  he  would  have  had  a  seat  with  the  Peers,  and 
would  have  been  disqualified  from  holding  a  seat  in  the 
Commons.  Being  the  oldest  son  of  the  Duke  of  Devon- 
shire and  heir  to  the  dukedom,  he  enjoyed  by  courtesy  his 
father's  second  title  of  Marquis.  But  when  he  became 
the  Duke  of  Devonshire,  upon  the  death  of  his  father,  he 

-  could  no  longer  hold  a  seat  in  the  House  of  Commons. 
A  peerage  is  created  by  letters  patent  issued  by  the 

/Crown,  conferring  upon  a  man  the  rank  and  title  of 
Baron,  or  one  of  the  superior  titles.  When  the  peerage 
is  once  created,  it  cannot  be  destroyed  by  any  definite 
process  known  to  English  law.  The  rank  and  the  title 
descend  perpetually  to  the  oldest  son  of  the  ennobled  man. 
The  bestowing  of  a  peerage  in  ordinary  form  involves 
making  the  recipient  a  member  of  the  House  of  Lords 
during  his  lifetime,  and  his  oldest  son  after  him  perpetu- 
ally. But  the  heir  of  the  deceased  Peer  does  not  have  a 
right  to  a  seat  in  the  House  of  Lords  until  he  has  reached 
the  age  of  one-and-twenty.  The  oldest  existing  peerage 
was  created  in  1264.  Only  nine  have  a  date  earlier  than 
the  fifteenth  century,  while  a  large  majority  of  them  have 
been  created  since  1800.^ 

From  the  foregoing  description  it  is  evident  that  there 
is  nothing  democratic  about  the  composition  of  the  House 

1  For  further  details  as  to  conditions  of  membership  in  the  House  of 
Lords,  see  Anson,  Law  and  Custom  of  the  Constitution^  Vol.  I.,  Chap. 


CHAP.  IV  THE    HOUSE   OF  LORDS  43 

of  Lords.  The  Bishops  are  members  by  virtue  of  ap- 
pointment to  a  bishopric,  and  the  tenure  is  for  life.  The 
Scottish  Peers,  it  is  true,  are  newly  elected  whenever  the 
House  of  Commons  is  dissolved ;  but  only  the  few  who 
hold  the  rank  of  Scottish  Peers  have  a  voice  in  the  elec- 
tion, and  they  may  choose  only  from  their  own  number. 
The  Irish  members  are  elected  in  the  same  way,  but  the 
election  is  for  life.  Four-fifths  of  the  entire  body  hold 
office  by  the  favour  of  the  Crown,  or  by  reason  of  the  fact 
that  they  are  the  oldest  sons  of  Peers.  The  only  way  in 
which  the  House  of  Lords  may  rationally  be  claimed  to 
represent  the  masses  of  the  people,  is  by  disregarding 
entirely  the  composition  of  the  House,  and  by  showing 
that,  as  a  matter  of  fact,  it  performs  a  function  which 
the  masses  of.  the  people  approve.  The  Upper  House  is\ 
often  described  as  representing  the  Hereditary  Nobility,  \ 
the  Landed  Aristocracy,  the  Clergy  of  the  Established 
Church,  and  the  high  official  class  in  the  Army  and  the  j 
Diplomatic  Service.  In  the  curt  phrase  of  recent  Eng-/ 
lish  political  debate  this  House  represents  "the  Classes." 
Of  the  five  hundred  and  fifty  members  of  the  House  of 
Lords,  from  twenty  to  thirty  habitually  attend  its  sittings. 
On  rare  occasions,  when  a  vote  of  unusual  importance  is 
to  be  had,  the  party  whips  succeed  in  drumming  up  an 
attendance  of  two  hundred.  Against  Mr.  Gladstone's 
Home  Rule  Bill,  in  1893,  there  was  in  the  House  of  Lords 
the  phenomenal  vote  of  419  to  41.  Three  mem^bers  con- 
stitute a  quorum  for  doing  business.  A  large  majority 
of  the  members  are  almost  never  seen  in  the  House. 
The  House  of  Lords  holds  sessions  five  days  in  a  week, 
and  these  are  usually  less  than  two  hours  in  length.  It 
will  be  seen  as  this  discussion  proceeds  that  this  com- 
parative freedom  from  legislative  duties  is  a  matter  of 
great  convenience  to  those  members  of  the  Cabinet  be- 
longing to  the  Upper  House  as  affording  leisure  for  other 


44  NATURE   OF  THE  ENGLISH  CONSTITUTION    chap,  iv 

important  labours,  and  the  exemption  is  of  especial  value 
to  the  Premier  who  chances  to  be  a  Peer. 

There  is  a  striking  contrast  between  the  usual  apathy 
in  the  House  of  Lords  and  the  spirit  and  life  of  the 
House  of  Commons.  Nearly  every  member  of  the  Com- 
mons habitually  attends  its  sittings.  On  important  divi- 
sions each  of  the  two  parties  musters  nearly  all  its  force. 
The  House  sits  five  days  in  a  week,  and  from  six  to  nine 
hours  a  session. 

The  plan  of  the  room  in  which  the  Lords  meet  resem- 
bles that  of  the  Commons.  The  presiding  officer  is  called 
the  Lord  Chancellor.  He  is  a  member  of  the  Cabinet, 
selected  as  are  other  Cabinet  officers,  and  is  usually  a 
lawyer  of  high  rank.  After  he  is  elected,  if  not  already 
a  Peer,  he  is  usually  made  a  Peer  by  the  Monarch.  His 
seat  is  in  front  of  the  throne,  and  is  called  the  "Wool- 
sack." As  in  the  Commons,  the  Cabinet  officers  occupy 
the  front  bench  to  the  right  of  the  presiding  officer.  The 
members  of  the  Opposition  are  on  the  left.  When  a  Con- 
servative Cabinet  is  in  office,  the  benches  on  the  left  are 
mostly  vacant.  The  great  body  of  the  Lords  are  Conser- 
vatives, but  it  has  always  been  possible,  thus  far,  for  the 
Liberals  to  find  enough  Lords  to  vote  with  them  to  main- 
tain in  the  Lords  a  show  of  opposition  to  the  measures 
of  a  Tory  Cabinet,  and  to  furnish  a  few  Cabinet  officers 
when  the  Liberals  are  in  office.  However,  as  at  present 
constituted  the  House  of  Lords  belongs  mainly  to  one 
political  party,  and,  as  compared  with  the  House  of  Com- 
mons, it  is  a  dull  and  uninteresting  place.  It  is  said  that 
many  of  the  more  active  and  ambitious  Lords  would  pre- 
fer to  be  members  of  the  Commons.  There  is  a  certain 
seat  in  the  gallery  of  the  House  of  Commons  that  has 

gained  the  name  of  "  Earl Seat."    The  Earl  often  sits 

there  and  listens  to  the  proceedings  of  the  Commons.     He 
gets  as  nearly  into  the  House  where  England  is  governed 


CHAP.  IV  THE   HOUSE   OF   LORDS  46 

as  the  law  will  allow,  and  there  he  sits  like  a  caged  lion, 
regretting,  as  many  believe,  the  fortune  which  has  cut 
him  off  from  active  participation  in  the  labours  of  the 
sovereign  branch  of  Parliament. 

In  the  account  of  those  governmental  agencies  which 
centre  in  the  House  of  Commons  an  extensive  system  of 
checks  and  balances  has  been  described,  not  one  of  which 
is  recognized  by  law.  But  the  House  of  Lords  is  a  legal 
check  upon  the  Commons.  _No  legislative  act  of  the 
Commons  will  be  recognized  and  enforced  by  the  Eng- 
llsli  courts  which  has  not  also  received  the  sanction  of  the 
Lords.     This  is  a  fact  of  great  constitutional  importance. 

Suppose  we  concede  for  the  time  being  that  the  Lords 
have  no  power  to  resist  or  reject  a  measure  passed  by  the 
Commons,  yet  the  mere  fact  that  they  must  review  the 
acts  of  the  Commons  and  may  propose  amendments  is  a 
thing  in  itself  important.  The  Lords  at  least  give  to  the 
Commons  the  opportunity  of  reviewing  their  own  acts, 
and  thus  exercise  an  important  constitutional  function. 
It  is  the  need  of  such  a  function  which  is  the  basis  of 
the  bicameral  system  of  legislative  bodies.  Those  phi- 
losophers are  wide  of  the  mark  who  seek  to  account  for 
the  existence  of  the  bicameral  system  by  the  accident  of 
two  houses  in  the  English  Parliament.  It  would  be  more 
rational  to  account  for  this  theory  of  the  philosophers  by 
the  accident  of  the  peculiar  organization  of  one  house  in 
the  English  Parliament.  The  Cabinet  and  the  House  of 
Commons  are  so  related  as  to  meet  in  a  measure  the  needs 
of  a  double  chamber.  First,  a  measure  is  discussed  in 
secret  Cabinet  meetings  and  gotten  into  form  for  presen- 
tation to  the  House.  Then  the  Cabinet  has  an  opportu- 
nity to  review  its  own  action  while  its  measure  is  being 
debated  in  the  House.  It  is  on  account  of  this  peculiar 
structure  and  method  of  the  House  of  Commons  that  to 
those  familiar  with  its  action  a  second  chamber  should 


46  NATURE   OF  THE  ENGLISH  CONSTITUTION    chap,  iv 

seem  superfluous.  But  from  its  own  nature  a  legislative 
chamber  is  in  need  of  an  opportunity  to  review  its  acts, 
and  the  simplest  constitutional  machinery  for  effecting 
this  is  to  place  two  chambers  side  by  side,  and  to  require 
the  acts  of  each  to  be  passed  upon  by  the  other. 

The  House  of  Lords  does  more  than  fulfil  this  simplest 
and  most  elementary  function  of  a  second  chamber.  The 
business  of  the  House  of  Commons  was  found  to  be 
divided  into  two  classes.  Cabinet  and  non-Cabinet  meas- 
ures. The  Cabinet  measures  are  those  in  which  the 
public  is  most  interested.  Many  of  these  are  bones  of 
contention  between  the  two  parties.  There  is  also  a 
large  amount  of  legislation  which,  while  receiving  little 
public  attention,  is  nevertheless  of  great  importance  to 
the  people.  In  this  field  of  legislation  the  House  of 
Lords  has  a  free  hand:  it  may  reject  at  will  any  non- 
Cabinet  measure  which  the  Commons  passes.  For  -more 
than  fifty  years  there  have  been  members  of  the  Com- 
mons who  have  believed  that  a  law  ought  to  be  passed 
which  would  permit  a  citizen  to  marry  his  deceased  wife's 
sister.  Such  a  bill  has  passed  the  Commons  many  times, 
and  as  many  times  has  been  rejected  by  the  Lords.  So 
long  as  this  measure  appears  and  is  passed  through  the 
Commons  as  a  private  bill,  the  only  way  in  which  it  can 
be  made  into  a  law  is  by  convincing  a  majority  of  the 
voting  Lords  that  they  ought  to  vote  for  it.  One  of 
the  wits  of  the  day  has  explained  the  oft-repeated  re- 
jection of  this  bill  in  the  House  of  Lords  by  the  state- 
ment that  there  has  not  been  a  time  during  the  last  fifty 
years  when  a  majority  of  the  English  voters  really 
wanted  to  marry  their  deceased  wives'  sisters.  If  this 
bill  should  be  introduced  by  a  Cabinet  which  enjoyed 
the  confidence  of  the  House  of  Commons,  and  if  the 
majority  in  the  Commons  enjoyed  the  confidence  of  a 
majority  of  the  voters,  then  the  House  of  Lords  would 


i 


CHAP.  IV  THE   HOUSE  OF  LORDS  47 

cease  to  have  a  free  hand.  In  that  case  the  Constitution 
requires  the  Lords  to  pass  the  bill  or  to  allow  it  to  pass, 
without  regard  to  the  individual  opinions  of  the  mem- 
bers.^ It  thus  appears  that  in  respect  to  a  large  and  im- 
portant branch  of  legislation  the  House  of  Lords  has 
equal  and  coordinate  powers.  It  may  initiate  important' 
legislation  by  introducing  bills ;  it  may  prevent  legisla- 
tion by  rejecting  bills  passed  by  the  Commons. 

Of  the  fourteen  prescriptions,  customs,  or  rules  of  the 
English  Constitution  which  Mr.  Dicey  gives,  the  eleventh 
is  thus  stated :  "  If  there  is  a  difference  of  opinion  be- 
tween the  House  of  Lords  and  the  House  of  Commons^ 
the  House  of  Lords  ought,  at  some  point  (not  definitely 
fixed)  to  give  way ;  and  should  the  Peers  not  yield,  and 
the  House  of  Commons  continue  to  enjoy  the  confidence 
of  the  country,  it  becomes  the  duty  of  the  Crown,  or  of 
its  responsible  advisers,  to  create  or  threaten  to  create 
enough  new  Peers  to  override  the  opposition  of  the 
House  of  Lords  and  thus  restore  harmony  between  the  i 
two  branches  of  the  legislature.  "^  If  previous  statements 
in  this  chapter  are  correct,  this  applies  only  to  what  has 
been  called  Cabinet  legislation,  and  cannot  apply  to  non- 
Cabinet  measures.  Of  the  constitutional  relation  of  the 
House  of  Lords  to  the  Cabinet  legislation  of  the  Com- 
mons it  would  be  difficult  to  find  a  more  clear,  concise, 
and  correct  statement  than  Mr.  Dicey  has  given.  From 
the  very  form  of  the  statement  it  is  evident  that  we  are 
dealing  with  mere  understandings  rather  than  with  laws. 

A  bill  passed  by  the  Commons  must  also  pass  the  Lords' 
before  it  becomes  a  law.  This  is  not  simply  an  under- 
standing ;  it  is  law.  The  courts  do  not  recognize  as  law 
acts  of  the  Commons  alone.  In  this  sense  the  House  of 
Lords  is  a  legal  check  upon  the  Commons.     Under  cer- 

1  See  Dicey,  Laxo  of  the  Constitution,  p.  384  et  seq. 
2/6irf.,p.  346. 


48  KATURE   OF  THE   ENGLISH   CONSTITUTION    chap,  iv 

ytain  conditions  the  Lords  must  vote  for  the  measures  of 
the  Commons  whether  they  approve  of  them  or  not. 
This  is  not  law,  for  no  English  court  has  recognized  it 
as  law.  It  depends  for  its  observance  upon  the  state  of 
mind  of  those  who  govern. 

To  understand  more  fully  the  relation  of  the  House  of 
Lords  to  Cabinet  legislation  it  is  well  to  remember  the 
constitution  of  the  House  of  Commons  and  all  the  gov- 
ernmental forces  which  centre  in  it.  It  will  be  observed 
that  Cabinet  legislation  is  party  legislation.  And  since, 
as  we  have  seen,  the  House  of  Lords  is  at  present  com- 
posed chiefly  of  one  political  party,  it  naturally  holds  a 
different  relation  to  the  Cabinets  of  the  two  parties. 
When  the  Conservatives  are  in  power,  the  two  Houses 
are  harmonious,  and,  in  the  case  of  a  newly  elected  Con- 
servative House,  all  the  chief  parts  of  the  Constitution 
are  in  political  harmony.  A  bill  introduced  by  a  Conser- 
vative Cabinet  is  in  the  hands  of  its  friends  during  all 
its  stages  while  passing  through  both  branches  of  the 
legislature.  If  it  is  amended,  the  work  is  done  in  a 
friendly  spirit.  The  House  of  Lords  would  not  throw 
out  a  Conservative  bill  unless  the  dominant  element  in 
the  party  was  ready  to  reject  it.  The  Lords  would  not 
go  to  the  extreme  limit  of  forcing  a  Conservative  Cabinet 
to  appeal  to  the  constituents  on  one  of  its  measures. 
Such  an  appeal  would  be  absurd  and  unintelligible.  It 
would  be  one  part  of  a  political  party  appealing  to  the 
voters  against  another  part  of  the  same  party.  It  would 
demoralize  the  party  and  paralyze  the  Constitution.  The 
only  constitutional  way  in  which  the  Lords  could  force 
the  Conservative  Government  to  dissolve  Parliament 
would  be  by  a  majority  of  the  Lords  joining  the  Liberal 
party  and  then  forcing  an  appeal  with  the  intention  of 
electing  a  Liberal  Cabinet. 

With  a  Conservative  Cabinet,  the  House  of  Lords  is  a 


CHAP.  IV'  THE   HOUSE   OF  LORDS  49 

friendly  advisory  body.  The  Cabinet  bills  are  received 
after  they  have  passed  the  Commons.  The  Cabinet  mem- 
bers, who  sit  at  the  right  of  the  Lord  Chancellor,  support 
the  measures.  They  have  at  their  back  a  large  majority 
to  ratify  every  proposition.  The  few  Liberal  leaders  who 
occupy  the  Opposition  bench  do  not  ordinarily  think  it 
worth  while  seriously  to  resist.  A  diminished  majority 
in  the  Commons  is  often  attended  with  serious  conse- 
quences. Such  a  vote  in  the  House  of  Lords  is  generally 
without  consequence.  To  a  Conservative  Cabinet,  then, 
the  only  point  of  serious  resistance  is  in  the  House  of 
Commons.  From  this  it  will  seem  that  the  Liberals  are 
under  a  stronger  temptation  to  use  obstructive  methods 
in  the  House  of  Commons  than  are  the  Conservatives.  A 
Conservative  Cabinet  may  legislate  for  seven  years  with 
little  regard  for  the  wishes  of  the  nation.  A  law  compels 
an  appeal  to  the  nation  at  the  end  of  seven  years ;  but  if 
the  majority  in  the  House  of  Commons  proves  steadfast, 
there  is  no  power  to  force  an  earlier  appeal. 

With   a   Liberal   Cabinet   the   case  is  different.     Th^ 
Cabinet  officers  in  the  Lords  are  confronted  by  a  large' 
Opposition  majority.     These  may  not  only  propose  amend- 
ments  for   the   sake   of   criticism ;   they  may  also  carry 
amendments.      These    amendments   being   made   by   the 
Opposition  party  are  sure  to  be  regarded  as  unfriendly. 
The  Liberals  are  often  compelled  to  accept  amendments    1 
or  to  incur  a  troublesome  alternative.     A  Liberal  Cabi- 
net is  thus  required  to  face  two  serious  oppositions,  while 
a  Conservative  Cabinet  faces  only  one.     The  Conservative 
Opposition  in  the  House  of  Lords  may  destroy  by  amend-      j 
ing  or  may  reject  entire  a  bill  passed  by  a  Liberal  House      / 
of  Commons.     When  they  reject  a  Cabinet  bill,  it  means 
that  they  are  ready  to  appeal  to  the  English  voters  on  the/ 
matter  at  issue,  and  in  case  of  such  an  appeal  the  burden 
falls  upon  the  Commons  rather  than  upon  the  Lords. 


50  NATUKE   OF  THE   ENGLISH   CONSTITUTION    chap,  iv 

In  quoting  from  Mr.  Dicey  the  passage  given  above, 
attention  is  called  to  the  words,  "should  the  Peers  not 
yield,  and  should  the  House  of  Commons  continue  to  enjoy 
the  confidence  of  the  country,  it  becomes  the  duty  of  the 
Crown,"  etc.  This  implies  that  the  House  of  Lords  may 
refuse  to  yield,  and  may  thus  force  the  Commons  to  test 
the  question  whether  they  continue  to  enjoy  the  confi- 
dence of  the  country.  1  A  Liberal  Cabinet  may  have  a 
large  and  constant  majority  in  the  House  of  Commons, 
and  may  nevertheless  be  forced  by  the  attitude  of  the 
House  of  Lords  to  hold  an  election. ^  It  is  not  maintained 
by  any  authority  on  the  English  Constitution  that  the 
extreme  measure  may  be  taken  to  compel  the  Lords  to 
yield  to  the  Commons  unless  it  has  been  made  evident 
that  the  Commons  themselves  are  in  accord  with  the 
nation  on  the  matter  in  dispute.  The  House  of  Lords  is 
thus  in  some  sort  an  arbiter  between  the  Liberal  Cabinet 
and  the  electorate.  This  is  a  position  of  great  consti- 
tutional importance.  As  is  natural,  there  is  a  consid- 
erable amount  of  hostility  to  the  House  of  Lords  in  the 
Liberal  party  on  account  of  this  inequality  of  conditions 
between  the  two  Cabinets.  It  may  well  happen,  however, 
that  a  Conservative  Democracy  may  come  to  feel  that  the 
Liberal  party,  or  the  party  of  change,  is  in  need  of  more 
ejffectual  checks  than  is  the  Conservative  party.  It  may 
be  well  to  maintain  an  institution  which  may  at  any  time 
compel  a  direct  appeal  to  the  English  Democracy  before 
some  of  the  measures  of  the  Radical  party  receive  the  sanc- 
tion of  law.^ 

Another  clause  in  Professor  Dicey's  list  of  customs  of 
the  Constitution  may  call  for  some  exposition, — that  which 

1  Kesignation  of  the  Ministry  does  not  always  follow.  See  Hearn,  The 
Government  of  England^  p.  169  et  seq. 

2  Anson,  Law  and  Custom  of  the  Constitution,  Part  I.,  p.  251, 
8  See  Sidgwick,  Elements  of  Politics,  p.  444. 


CHAP.  IV  THE    HOUSE   OF   LORDS  51 

mentions  the  duty  of  the  Crown,  or  of  the  Ministers  of 
the  day,  to  force  the  Lords  to  yield.  Of  course  it  is  un- 
derstood that  this  is  not  law  ;  it  is  theory ;  it  is  an  under- 
standing. Let  it  be  observed  that  in  the  use  of  the  word 
"  Crown  "  and  the  phrase  "  its  responsible  advisers,"  Mr. 
Dicey  means  one  and  the  same  thing.  As  will  be  ex- 
plained farther  on,  the  Crown  and  the  Ministry,  or  the 
Cabinet,  as  the  terms  are  now  used,  are  often  identical  in 
meaning.  The  case  under  discussion  supposes  that  the 
Lords  have  rejected  a  Cabinet  measure,  that  an  appeal 
has  been  made  to  the  constituents,  and  a  new  House  of 
Commons  has  been  chosen  which  gives  its  confidence  to 
the  Cabinet  ;  that  the  same  measure  is  again  sent  to  the 
Lords,  and  that  they  still  refuse  their  assent.  This  is  a 
clear  case  of  lack  of  harmony  in  the  Constitution  ;  the 
sovereign  power — that  is,  the  power  of  the  nation  —  is  ar- 
rested. Harmony  is  restored  by  an  appeal  to  the  Execu- 
tive to  overcome  the  obstruction. 

Two  facts  in  the  past  history  of  England  are  cited 
as  indicating  the  method  of  securing  harmony.  The 
first  belongs  to  a  time  long  before  the  theory  of  the 
subordination  of  the  House  of  Lords  had  been  devel- 
oped, and  at  a  time  when  the  personal  will  of  the 
Monarch  was  a  much  larger  factor  in  the  Executive 
than  it  is  to-day.  Queen  Anne,  in  1711,  created  twelve 
new  Peers  in  order  to  secure  the  passage  of  a  bill  through, 
the  House  of  Lords.  But  the  case  which  is  chiefly  relied  ^ 
upon  in  support  of  this  method  is  that  of  1832.  The 
Reform  Bill  having  passed  through  all  the  various  stages 
which  have  been  outlined,  and  the  Peers  still  refusing  to 
yield,  the  King  gave  to  the  Prime  Minister  a  written 
statement  that  in  case  the  Lords  still  remained  obdurate 
he  would  create  enough  new  Peers  to  secure  the  passage 
of  the  bill.  In  view  of  this  threat  the  Peers  yielded  and 
passed  the  bill.     It  is  out  of  this  case  especially  that  the 


/ 


52  NATURE   OF  THE  ENGLISH   CONSTITUTION    chap,  iv 

theory  of  the  subordination  of  the  House  of  Lords  has 
been  developed.  The  Lords  have  in  general  accepted  this 
position.  No  case  has  since  occurred  where  it  has  been 
found  necessary  to  put  forth  a  formal  threat  of  packing 
the  House  of  Lords.  When  Mr.  Gladstone,  in  1885,  in- 
troduced a  Reform  Bill  to  which  he  expected  the  opposi- 
tion of  the  Lords,  he  used  language  which  would  bear  the 
interpretation  of  a  threat.  He  said  that  he  intended  to 
use  all  the  power  which  the  Constitution  of  England  fur- 
nished in  order  to  carry  his  bill  to  its  final  passage.  He 
was  understood  to  mean  that  if  need  be  he -would  force 
the  Lords  to  pass  it. 

There  are  strong  reasons  why  the  Peers  should  object 
to  the  execution  of  a  threat  to  pack  the  House.  First,  by 
reference  to  previous  descriptions,  it  will  be  seen  that 
such  a  proceeding  would  naturally  have  the  effect  of 
changing  the  politics  of  the  House  of  Lords.  The  House 
would  become  Liberal  in  politics.  Again,  the  new  peer- 
ages would  be  as  permanent  as  the  old;  for,  as  the  result 
/of  a  contest  between  the  Crown  and  the  House  of  Lords 
'  in  1856,  an  understanding  was  reached  that  the  Executive 
may  not  now  create  life  Peers,  but  only  hereditary  peer- 
ages. Moreover,  the  multiplication  of  peerages  for  such 
a  purpose  would  have  a  manifest  tendency  to  degrade  the 
order.  Finally,  if  the  Lords  should  make  such  an  in- 
crease necessary  for  the  purpose  under  discussion,  it  would 
indicate  the  existence  of  a  revolutionary  state  of  mind  in 
the  ruling  classes. 

The  creation  of  new  Peers  to  overcome  resistance  in  the 

House  of  Lords  has  received  much  attention  in  political 

\    discussion,!  because  it  furnishes  to  the  mind  a  definite, 

1  For  diverse  views  see  Sidgwick,  Elements  of  Politics^  p.  609  ;  Med- 
ley, English  Constitutional  History,  p.  258  ;  May,  Constitutional  History 
of  England,  Vol.  I.,  p.  253  et  seq.  ;  Anson,  Law  and  Custom  of  the  Con- 
stitution, Part  I.,  p.  248;  Hearn,   The  Government  of  England,  p.  178 


CHAP.  IV  THE   HOUSE  OF  LORDS  53 

tangible  method  of  meeting  a  difficulty.    Yet  the  act  itself 
is  so  extreme,  so  revolutionary  in  its  nature,  that  it  is  no 
longer  seriously  contemplated.     The  Lords  are  induced  to 
yield  through  motives  less  easily  defined ;  through  respect 
for  public  opinion,  through  fear  of  confusion  and  anarchy 
resulting  from  a  paralysis  in  the  Government.     In  prac- 
tice it  would  be  much  easier  for  a  Liberal  Government  to  \ 
conquer  the  resistance  of  the  Lords  by  cutting  off  sup-    \ 
plies,  and  holding  them  responsible  before  the  country  for     \ 
the  consequences.     There  is,  however,  one  possible  meas-     / 
ure  for  the  passage  of  which  the  actual  packing  of  the    / 
House  of   Lords   might  be  rationally  contemplated,  and  / 
that  is  a  bill  to  reconstruct  or  to  abolish  the  House  of  / 
Lords  itself. 

From  what  has  been  said  it  will  be  inferred  that  all 
Cabinet  bills  of  first  rate  political  importance  must  origi- 
nate in  the  House  of  Commons.  As  a  matter  of  fact 
they  do  so  originate.  A  bill  originating  in  the  House  of 
Lords  may,  however,  when  it  reaches  the  House  of  Com- 
mons, be  adopted  by  the  Cabinet  and  thus  be  assisted  on 
its  passage.  Such,  however,  is  not  the  usual  course. 
The  House  of  Lords  is  not  expected  to  originate  bills  in 
that  field  of  governmental  business  covered  by  the  bills 
of  the  Cabinet.  In  current  constitutional  discussion,  the 
House  of  Lords  is  assumed  to  be  a  revisory,  or  second 
chamber,  and  the  House  of  Commons  is  assumed  to  be 
the  first,  or  initiative  chamber.  According  to  the  older 
theory  of  the  Constitution  the  House  of  Lords  has  a  right 
to  initiate  legislation  on  all  subjects  except  taxation.  It 
is  one  of  the  most  thoroughly  established  principles  of  the 
Constitution  that  bills  for  raising  revenue  must  originate 
in  the  House  of  Commons.  It  is  also  understood  that  the 
House  of  Lords  has  not  the  power  of  proposing  amend- 
ed seq. ;  Pike,  Constitutional  History  of  the  House  of  Lords,  p.  336 ; 
Dicey,  The  Law  of  the  Constitution,  p.  384. 


fa] 


64  NATURE  OF  THE  ENGLISH  CONSTITUTION    chap,  iv 

ments  to  a  money  bill.  In  former  generations  this  under- 
standing was  used  as  a  weapon  for  forcing  the  Lords  to 
pass  obnoxious  measures,  which  were  tacked  to  money 
bills,  and  the  Lords  thus  constrained  to  vote  for  them. 
This  method  has  long  since  fallen  out  of  use,  and  some 
authorities  affirm  that  it  would  now  be  unconstitutional 
for  the  Commons  to  use  such  a  method  of  compulsion.^ 
Yet  a  writer  in  the  Westminster  Review  (1889)  ^  advocates 
the  employment  of  this  method  of  forcing  the  hand  of 
the  Lords. 

The  House  of  Lords  has  now  come  to  be  pretty  gener- 
[ally  looked  upon  as  the  '^  Sick  Man  "  of  the  English  Con- 
^itution.  The  doctors  are  numerous,  and  they  are  liberal 
in  their  offers  of  prescriptions.  It  is  comparatively  easy 
to  outline  a  course  of  conduct  for  the  House  as  it  is  now 
constituted,  which  would  make  it  a  most  healthful  and 
useful  organ  of  the  body  politic.  The  following  are  pre- 
sented as  examples  of  current  prescriptions  :  First,  let 
the  Lords  lose  no  time  and  spare  no  pains  in  winning  the 
confidence  of  the  Conservative  Democracy  of  England. 
The  surest  way  to  win  confidence  is  to  give  confidence. 
Intelligent  confidence  is  based  upon  a  knowledge  of  the 
better  self  of  those  in  whom  confidence  is  placed.  Second, 
let  the  Lords  fully  appreciate  the  fact  that  their  position 
as  members  of  one  party  has  prima  fade  the  appearance  of 
unfairness  to  the  other  party.  The  ideal  which  naturally 
fills  the  minds  of  men  is  that  the  two  political  parties 
should  be  in  all  respects  in  a  position  of  substantial  equal- 
ity. Third,  a  proper  appreciation  of  this  apparent  un- 
fairness would  tend  to  induce  such  conduct  as  to  convince 
the  public  that  there  is  no  real  unfairness.  That  is,  the 
Lords  should  be  conspicuously  faithful  in  the  structural 
revision  of  bills  from  the  Liberal  Cabinet,  because  this  is 

1  Hearn,  The  Government  of  England^  p.  193. 

2  Vol.  131,  p.  227. 


CHAP.  IV  THE   HOUSE   OF  LORDS  66 

a  sort  of  revision  which  all  parties  approve.  They  should 
be  as  conspicuously  careful  not  to  introduce  amendments 
which  would  admit  of  a  construction  hostile  to  the 
spirit  and  intention  of  the  bill.  Few  laws  were  ever 
passed  which  did  not  disappoint  a  large  proportion  of 
those  who  desired  their  passage.  If  the  Lords  make  any 
amendment  of  the  sort  suggested,  it  is  likely  to  bring 
upon  their  heads  the  odium  which  comes  from  the  failure 
of  the  law  to  fulfil  all  expectations.  Then,  having  won 
the  confidence  of  the  Conservative  Democracy,  having  es- 
tablished a  reputation  for  fair  dealing  with  the  bills  of  the 
Liberal  Cabinet,  the  House  of  Lords  would  be  in  a  position 
to  fulfil  its  supreme  constitutional  function  of  securing 
an  appeal  to  the  constituencies  on  important  changes, 
proposed  by  the  party  of  change.  Finally,  in  order  that 
this  plan  should  work,  it  is  desirable  that  the  Conserva- 
tive party  should  leave  to  the  party  of  change  the  task  of 
formulating  all  radical  legislation. 


CHAPTER  V 


THE  CKOWN 


"TN  a  former  chapter  attention  was  called  to  the  fact 
-'-  that  authorities  have  not  always  agreed  as  to  the 
democratic  character  of  the  English  Constitution.  Some 
have  held  that  sovereign  power  rests  with  the  Monarch, 
that  the  entire  Constitution  is  built  up  around  the  throne, 
that  he  who  is  called  sovereign  is  sovereign.  Those  who 
hold  this  view  find  strong  support  in  the  forms  of  English 
law.  Behind  the  Woolsack  in  the  House  of  Lords,  upon 
which  the  Lord  Chancellor  presides,  is  a  throne.  This 
reminds  one  of  a  time  when  the  Monarch  was  an  actual 
and  integral  part  of  this  most  ancient  branch  of  Parlia- 
ment, and  it  helps  to  explain  the  legal  fiction  that  the 
Monarch  is  still  a  part  of  Parliament.  According  to  the 
forms  of  law  it  is  the  Queen  who  summons,  dismisses,  and 
dissolves  Parliament.  The  two  Houses  are  the  Queen's 
High  Court  for  deliberation  and  legislation.  The  Queen's 
speech  outlines  the  business  of  Parliament.  It  is  the 
Queen  who  appoints  and  dismisses  the  Ministers  who 
make  up  the  Cabinet.  The  Cabinet  asks  supplies  for  the 
Queen's  Government,  and,  in  the  accepted  phrase  of  the 
day,  it  is  the  Queen's  Opposition  who  sit  on  the  benches 
across  the  way  and  criticise  the  doings  of  the  Cabinet. 
Parliament  is  the  Queen's  agent  for  making  laws  and  for 
voting  supplies.  The  courts  of  law  are  her  agents  for 
deciding  cases  at  law.  Judicial  processes  are  all  in  the 
Queen's  name. 

66 


CHAP.  V  THE  CROWN  57 

A  passage  from  Mr.  Bagehot's  English  Constitution 
puts  in  strong  light  the  legal  relation  of  the  Queen  to  the 
Executive  business  of  the  realm.  "When  the  Queen  / 
abolished  Purchase  in  the  Army  by  an  act  of  prerogative 
(after  the  Lords  had  rejected  the  bill  for  doing  so),  there 
was  a  great  and  general  astonishment.  But  this  is  nothing 
to  what  the  Queen  can  by  law  do  without  consulting  Par- 
liament. Not  to  mention  other  things,  she  could  disband 
the  army  (by  law  she  cannot  engage  more  than  a  certain 
number  of  men,  but  she  is  not  obliged  to  engage  any 
men) ;  she  could  dismiss  all  the  officers,  from  the  General 
Commanding-in-Chief  downwards  ;  she  could  dismiss  all 
the  sailors  too  ;  she  could  sell  off  all  our  ships  of  war  and 
all  our  naval  stores  ;  she  could  make  a  peace  by  the  sac- 
rifice of  Cornwall,  and  begin  a  war  for  the  conquest  of 
Brittany.  She  could  make  every  citizen  in  the  United 
Kingdom,  male  or  female,  a  Peer ;  she  could  make  every 
parish  in  the  United  Kingdom  a  "University";  she  could 
dismiss  most  of  the  civil  servants ;  she  could  pardon  all 
offenders.  In  a  word,  the  Queen  could  by  prerogative 
upset  all  the  action  of  civil  government  within  the  govern- 
ment, could  disgrace  the  nation  by  a  bad  war  or  peace, 
and  could,  by  disbanding  our  forces,  whether  by  land  or 
sea,  leave  us  defenceless  against  foreign  nations."  ^ 

All  this  is  exceedingly  puzzling  to  a  matter-of-fact 
American.  In  former  chapters  the  English  Constitution 
is  described  as  centring  in  the  House  of  Commons,  and 
it  is  found  to  be  thoroughly  democratic.  When  compared 
with  our  own  government,  it  seems  to  us  perilously  demo- 
cratic, —  a  democracy  lacking  nearly  all  the  legal  checks 
and  balances  which  our  own  constitution-makers  have 
devised  for  the  purpose  of  restraining  a  rampant  or  ill- 
advised  democracy.  This  democratic  view  of  the  Consti- 
tution is  also  seen  to  be  the  correct  one  as  set  forth  by  the 
'^English  Constitution,  p.  32,  Introduction  to  second  edition. 


58  NATURE   OF  THE   ENGLISH   CONSTITUTION      cjiap.  v 

highest  English  authorities.  But  here  is  another  view  of 
the  Constitution,  or  Laws,  in  which  the  Queen  is  made  the 
source  and  centre  of  power  and  authority.  It  is  natural 
that  an  American  should  ask  for  an  explanation. 

In  the  first  place,  it  should  be  observed  that  the  Queen 
is  not  said  to  exercise  these  powers,  or  to  be  entitled  to  do 
so  by  the  Constitution  ;  they  merely  belong  to  her  accord- 
ing to  the  forms  of  laiv.  It  is  not  the  Constitution,  but  the 
forms  of  law,  by  which  such  power  is  attributed  to  her. 
In  America  we  arraign  a  criminal  in  the  name  of  the 
state,  or  in  the  name  of  the  people  of  the  state  in  which 
the  crime  was  committed,  but  the  people  of  the  state  have 
no  direct  share  in  his  trial ;  the  criminal  has  to  do  with  a 
judge  and  a  jury.  The  fact  that  in  England  the  name 
of  the  Queen  takes  the  place  of  "  people "  in  the  legal 
formula  gives  her  no  judicial  power.  No  one  claims  that 
the  Monarch  has  any  direct  share  in  judicial  business.  So 
in  respect  to  all  the  forms  which  connect  the  name  of  the 
Queen  with  the  acts  of  Parliament;  they  are  merely 
forms.  The  Ministers  write  the  Queen's  speech.  Parlia- 
ment determines  its  own  sittings.  An  act  which  has 
passed  the  two  Houses  of  Parliament  requires  the  Queen's 
signature  before  it  is  completed,  yet  Mr.  Bagehot,  from 
whom  I  have  quoted  the  declarations  respecting  the  high 
prerogatives  of  the  Queen,  is  most  emphatic  in  his  denial 
of  the  Queen's  constitutional  power  to  withhold  her  signa- 
ture.^ The  signing  is  merely  a  form.  Indeed,  so  far  as 
judicial  and  legislative  bvisiness  is  concerned,  the  Crown 
is  almost  without  power. 

The  case  of  the  Executive  is  different.  All  admit  that 
the  Monarch  does  have  some  share  in  executive  business, 
and  through  the  relation  of  the  Crown  to  the  Cabinet,  the 
Monarch  may  affect  the  Parliament.  If  she  has  any  influ- 
ence upon  the  judiciary,  it  is  through  the  executive  act  of 
1  Bagehot,  English  Constitution^  p.  125. 


CHAP.  V  THE   CROWN  59 

appointing  judges ;  but  in  that  matter  she  is  bound  to  be 
guided  by  the  advice  of  the  Lord  Chancellor.  All  that  is 
important  in  the  constitutional  position  of  the  Crown  is 
found  in  the  Executive. 

There  are  five  terms  used  in  the  discussion  of  the  Eng- 
lish Constitution  the  meaning  of  which  should  be  carefully 
noted.  These  are  the  Crown,  the  Executive,  the  Minis- 
try, the  Cabinet,  and  the  Government.  As  the  words 
are  sometimes  used  they  all  have  the  same  meaning. 
They  mean  th6  body  of  high  officials  who  are  responsible 
for  the  public  business.  It  is  often  said  that  the  Crown 
does  a  thing,  or  the  Queen  does  it,  when  the  meaning  is 
that  the  Ministers  do  it.  As  now  understood,  the  Con- 
stitution does  not  permit  the  Queen,  by  her  own  will  and 
on  her  own  responsibility,  to  perform  any  executive  act. 
What  the  Queen  does  must  be  done  through  her  Minis- 
ters. Yet  the  term  "  Crown  "  is  often  applied  to  the  personal 
influence  of  the  Monarch  upon  the  Ministers.  "  Executive  " 
is  a  comprehensive  term  applicable  to  the  Crown  and  the 
Ministers  together.  The  "  Ministry,"  as  the  term  is  some- 
times used,  differs  from  the  "  Cabinet "  in  that  it  includes 
a  larger  number  of  officers.  The  Cabinet  is  composed  of 
fifteen,  more  or  less,  of  the  chief  executive  officers.  The 
Ministry  includes  additional  high  officials.  When  a  Cab- 
inet resigns,  and  a  new  one  is  formed,  it  involves  a  change 
of  three  times  as  many  officers  as  are  in  the  Cabinet.  As 
the  terms  are  generally  used,  however,  they  have  the  same 
meaning.  "  Government "  is  a  frequent  substitute  for 
"Cabinet."  The  Opposition  criticise  the  Government, 
the  Cabinet,  the  Ministry,  and  sometimes  the  Executive. 
But  when  the  Executive  is  made  the  subject  of  hostile 
criticism,  the  term  is  used  as  synonymous  Avith  the  other 
three.  The  Crown  is  not  usually  made  the  subject  of 
hostile  criticism,  nor  is  the  Executive  criticised  when  the 
term  is  intended  to  include  the  Monarch. 


60  NATURE   OF  THE   ENGLISH   CONSTITUTION      chap,  v 

The  key  to  the  reconciliation  of  the  conflicting  theories 
of  the  Constitution  is  found  in  the  statement  already  made, 
that  the  Queen  cannot  on  her  own  responsibility  perform 
any  executive  act.  She  is  not  made  the  subject  of  criti- 
cism, nor  is  there  any  way  known  to  the  Constitution 
whereby  the  Monarch  may  be  punished  for  wrong-doing. 
She  may  not  be  sued,  she  may  not  be  impeached.  But 
the  Ministers  of  the  Crown  may  be  sued,  they  may  be  im- 
peached, and,  as  we  have  seen,  they  may  be  driven  from 
office  for  official  wrong-doing.  In  order  that  some  one 
may  be  held  amenable  to  the  laws  and  to  public  criticism, 
it  is  understood  that  for  every  executive  act  there  must 
intervene  an  executive  agent  who  may  be  publicly  ar- 
raigned for  the  act,  criticised,  and,  if  need  be,  punished. 

This  is  not  a  mere  understanding ;  it  is  law.  Read 
again  the  list  of  high-handed  acts  which,  as  Mr.  Bagehot 
has  told  us,  the  Queen  may  perform  by  her  sole  prerogative 
without  consulting  Parliament.  Notice  that  we  are  not 
told  that  the  Queen  can  do  those  things  on  her  own  re- 
sponsibility. Not  one  of  those  things  can  she  do  except 
through  a  public  official,  and  the  public  and  the  courts  of 
law  hold  tlie  Minister  answerable  for  the  act.  As  thus 
construed  the  prerogative  of  the  Crown  means  certain  acts 
which  may  be  done  by  the  Executive  without  consulting 
Parliament.  For  all  these  acts  the  Cabinet  is  called  to 
an  account  in  the  House  of  Commons.  Every  day  the 
Ministers  are  questioned  about  their  conduct  of  public 
business,  and  their  acts  are  thus  brought  to  the  light  of 
day.  If  those  acts  are  not  satisfactory  to  the  people's 
representatives,  the  Ministers  are  driven  from  office,  and 
others  are  chosen  who  will  do  the  business  as  the  people 
want  it  done. 

This  point  may  be  illustrated  by  the  following  passage 
from  Mr.  Dicey:  "The  survival  of  the  prerogative,  con- 
ferring as  it  does  wide  discretionary  authority  upon  the 


CHAP.  V  THE  CROWN  61 

Cabinet  [note  here  the  substitution  of  the  word  "  Cabinet " 
for  the  word  "Crown"],  involves  a  consequence  which 
constantly  escapes  attention.  It  immensely  increases  the 
authority  of  the  House  of  Commons,  and  ultimately  the 
constituencies  by  which  the  House  is  returned.  Ministers 
must  in  the  exercise  of  all  discretionary  powers  inevitably 
obey  the  predominant  authority  in  the  state.  When  the 
King  was  the  chief  member  of  the  sovereign  body,  Ministers 
were  in  fact,  no  less  than  in  name,  the  King's  servants.  At 
periods  of  our  history  when  the  Peers  were  the  most  influ- 
ential body  in  the  country,  the  conduct  of  the  Ministry 
represented  with  more  or  less  fidelity  the  wishes  of  the 
Peerage.  Now  that  the  House  of  Commons  has  become 
by  far  the  most  important  part  of  the  sovereign  body,  the 
Ministry  in  all  matters  of  discretion  carry  out,  or  tend  to 
carry  out,  the  will  of  the  House.  .  .  .  The  prerogatives 
of  the  Crown  have  become  the  privileges  of  the  people, 
and  any  one  who  wants  to  see  how  widely  these  privileges 
may  conceivably  be  stretched  as  the  House  of  Commons 
becomes  more  and  more  the  direct  representative  of  the 
true  sovereign,  should  weigh  well  the  words  in  which 
Bagehot  describes  the  powers  which  can  still  legally  be 
exercised  by  the  Crown  without  consulting  Parliament ; 
and  remember  that  these  powers  can  now  be  exercised  by 
a  Cabinet  who  are  really  servants,  not  of  the  Crown,  but 
of  a  representative  chamber  which  in  its  turn  obeys  the 
behests  of  the  electors."  ^  Then  follows  in  Mr.  Dicey's 
book  the  quotation  from  Bagehot  which  I  have  given. 
If  we  now  read  the  passage  from  Mr.  Bagehot,  and  sub- 
stitute throughout  the  word  "Cabinet"  in  the  place  of  the 
word  "  Queen,"  we  may  perceive  how  prerogative  may  be 
reconciled  with  a  democratic  Constitution. 

The  House  of  Lords  is  not  democratic  in  its  structure, 
nor  has  it  thus  far  been  democratic  in  its  practical  work- 
1  The  Law  of  the  Constitution,  p.  392. 


62  NATURE   OF  THE   ENGLISH   CONSTITUTION      chap,  v 

ing.  The  Lords  may  furnish  a  good  deal  of  resistance 
to  the  measures  of  the  Commons,  and  when  they  do  resist, 
there  is  no  way  to  overcome  their  opposition  but  by  a 
process  almost  revolutionary  in  its  character ;  that  is,  by 
filling  the  House  with  new  members  or  by  withholding 
necessary  supplies.  We  now  reach  the  conclusion,  upon 
the  high  authority  of  Mr.  Dicey,  that  through  the  con- 
ferring of  many  high  prerogatives  upon  the  Crown  by 
the  form  of  English  law,  the  English  Democracy  are 
provided  with  an  additional  means  of  making  the  govern- 
ment still  more  democratic.  The  Cabinet  has  a  sort  of 
two-edged,  weapon.  The  edge  for  daily  use  is  Parliament. 
Yet,  if  the  Upper  House  of  Parliament  become  obstruc- 
tive, a  democratic  Cabinet  may  resort  to  the  use  of  pre- 
rogative, and  thus  accomplish  its  end  without  reference 
to  the  will  of  the  aristocratic  House. 

Mr.  Dicey  does  not  rest  his  case  upon  a  mere  theory ; 
he  gives  an  actual  instance.  In  the  conduct  of  executive 
business  there  had  long  existed  the  custom  of  purchasing 
the  salaried  offices  in  the  Army.  In  1871  a  Liberal 
Cabinet  passed  a  bill  through  the  House  of  Commons  to 
abolish  Purchase  in  the  Army.  The  Lords  refused  to 
pass  the  bill.  The  Cabinet  immediately  removed  the 
abuse  by  using  the  prerogative  of  the  Crown.  Mr.  Dicey 
thinks  that  had  it  not  been  for  this  second  weapon  in 
the  hands  of  the  Cabinet  the  practice  of  Army  Purchase 
might  have  continued  to  the  present  day.^  This  may  be 
reconciled  with  former  statements  as  to  the  power  of  the 
Commons  over  the  Lords  by  the  reflection  that  while 
theoretically  the  Cabinet  has  the  power  to  force  the  hand 
of  the  Lords,  it  is  in  fact  inconvenient  and  •  sometimes 
impossible  for  it  to  do  so.  In  respect  to  all  that  branch 
of  business  which  is  covered  by  the  prerogative  of  the 
Crown  the  thing  desired  may  be  done  Avithout  consul t- 
1  Dicey,  The  Law  of  the  Constitution,  p.  393. 


cn.vr.  V  THE   CROWN  63 

iiig  the  Lords.  The  especial  force  of  Mr.  Dicey 's  con- 
tention is  seen  in  the  reflection  that  not  only  is  royal 
prerogative  democratic  in  its  character,  but  it  is  more 
democratic  than  is  the  power  not  covered  by  the  royal 
prerogative,  in  that  it  may  be  exercised  without  the 
check  of  the  House  of  Lords. 

No  better  illustration  can  be  found  of  the  teaching  that 
the  English  Constitution  rests  upon  theory.  Royal  pre- 
rogative strengthens  the  Democracy  only  upon  the  theory 
that  the  English  voters,  through  the  choice  of  members 
of  the  House  of  Commons,  govern  England.  The  theory 
assumes  that  the  Cabinet  is  at  all  times  responsive  to  the 
wishes  of  the  House  and  that  the  House  is  at  all  times 
responsive  to  the  will  of  the  nation.  Royal  prerogative 
is  democratic  only  when  it  is  used  to  overcome  the  resist- 
ance of  an  undemocratic  House  of  Lords.  There  have 
been  in  the  past  kings  and  cabinets  who  used  royal  pre- 
rogative to  overcome  resistance  in  the  House  of  Commons 
and  to  rule  without  reference  to  the  will  of  the  nation. 
Circumstances  might  arise  in  which  the  same  thing  would 
happen  again.  In  that  case  royal  prerogative  would  be 
anything  but  democratic.  What  Mr.  Dicey  says  of  pre- 
rogative is  true  so  long  as  a  certain  theory  of  the  Con- 
stitution works  in  a  certain  way.  His  contention  is  that 
royal  prerogative  strengthens  the  leading  factor  in  the 
nation.  At  a  time  when  kings  were  dominant,  prerogative 
strengthened  the  Crown.  When  the  nobles  held  the  chief 
power,  prerogative  strengthened  the  House  of  Lords,  and 
as  the  Commons  and  the  voting  constituencies  gain  the 
leading  place,  prerogative  gives  additional  force  to  the 
Democracy. 

We  are  now  prepared  to  reconcile  the  English  Consti- 
tution as  seen  from  the  standpoint  of  English  law  with 
the  same  Constitution  as  seen  from  the  standpoint  of  the 
facts  of  government,  and  we  do  this  by  saying  that  the 


64  NATURE   OF  THE   ENGLISH   CONSTITUTION     chap,  v 

forms  of  law  require  a  series  of  statements  which  at 
the  present  time  are  not  true.  Yet  it  would  be  a  great 
mistake  to  suppose  that  because  the  forms  of  law  are  in 
conflict  with  the  actual  facts  of  the  Constitution,  these 
forms  have  therefore  no  effect  upon  the  actual  Constitu- 
tion. One  very  marked  effect  is  the  tendency  which  is 
thus  produced  to  prevent  the  real  Constitution  from  being 
reduced  to  definite  written  form.  When  one  law  contra- 
dicts another,  it  is  not  possible,  or  at  least  it  would  not 
be  convenient,  to  put  them  both  into  definite  written  and 
authoritative  form.  So  long  as  the  forms  of  law  represent 
the  Queen  as  summoning,  directing,  dismissing  or  dis- 
solving the  action  of  Parliament,  it  would  appear  incon- 
sistent were  there  enacted  a  definite  and  explicit  law 
placing  the  management  and  direction  of  Parliament  in 
the  hands  of  a  legally  constituted  Cabinet.  But  so  long 
as  these  forms  are  traversed  by  a  series  of  mere  under- 
standings which  have  never  found  expression  in  any 
official  or  authoritative  way,  the  inconsistency  is  not  so 
troublesome.  It  would  make  sad  havoc  with  many  legal 
customs  and  forms  of  English  law  if  the  real  Constitu- 
tion were  put  into  definite  and  authoritative  form;  and 
the  English  Constitution  reduced  to  definite  and  authori- 
tative form  would  really  be  a  very  different  Constitution 
from  what  it  now  is.  A  constitution  which  is  made  by 
gradually  coming,  through  contention  and  conflict,  to 
understandings  which  contradict  the  forms  of  law,  is 
unique  in  its  character.  If  you  reduce  such  a  consti- 
tution to  writing,  you  destroy  its  essential  character  and 
put  an  entirely  different  one  in  its  place. 

The  startling  character  of  the  English  democratic  Con- 
stitution as  compared  with  the  cautiously  constructed 
American  Constitution  is  noticed  in  a  preceding  chapter, 
and  the  statement  is  there  made  that  the  English  them- 
selves never  deliberately  formed  such  a  constitution.    We 


CHAP.  V  THE   CROWN  66 

have  now  reached  the  most  important  fact  in  explanation. 
The  ancient  theory  of  the  Constitution  made  the  Monarch 
the  centre  of  power  and  authority.  Around  the  Monarch 
all  the  high  governmental  agencies,  executive,  legislative, 
and  judicial,  were  grouped.  The  forms  of  law  are  still  in 
accord  with  this  ancient  monarchical  Constitution.  The 
modern  democratic  Constitution  has  been  formed  by  a 
series  of  acts  and  understandings  which  have,  in  the  main, 
left  the  ancient  forms  unchanged.  Before  the  English  can 
have  effective  legal  checks  in  their  democratic  Constitution 
they  will  be  compelled  to  recognize  in  their  forms  of  law 
the  fact  that  such  a  thing  as  a  Democracy  exists.  A  habit, 
or  an  understanding,  may  be  a  satisfactory  or  an  effectual 
check,  but  it  is  not  a  legal  check.  It  is  exceedingly  diffi- 
cult to  conduct  a  protracted  discussion  upon  the  English 
Constitution  without  making  statements  which  appear  con- 
tradictory. The  statement  just  made  seems  to  imply  that 
the  present  English  Constitution  is  without  legal  checks  ; 
yet  I  have  several  times  stated  that  the  House  of  Lords 
is  one  such  check  upon  the  House  of  Commons.  As 
regards  non-Cabinet  legislative  business,  the  Lords  have 
a  free  hand,  and  are  often  an  effectual  check  upon  the 
Commons. 

These  contradictions  inhere  in  the  nature  of  the 
English  Constitution.  Its  legal  checks  contradict  the 
democratic  theory.  Hence  we  are  driven  to  maintain 
that  the  checks  do  not  exist,  or  that  the  Constitution 
lacks  so  much  of  being  democratic,  or  that  the  people 
have  approved  of  a  thing  about  which  they  have  never 
been  consulted. 

For  the  sake  of  illustration  by  contrast  let  us  notice  the 
corresponding  institutions  in  the  United  States.  The 
Senate  is  a  legal  check  upon  the  House  of  Representa- 
tives, and  these  are  both  agencies  of  the  sovereign  people. 
By  the  creation  of  these  agencies  the  people  have  deliber- 


66  NATURE   OF   THE   ENGLISH   CONSTITUTION     chap,  v 

ately  put  a  check  upon  themselves.  They  have  done  it 
by  clearly  expressed  constitutional  law.  It  is  difficult  to 
see  how  they  could  have  done  it  by  a  mere  understand- 
ing. We  will  suppose  now  that  the  people  wish  to  do 
something  in  respect  to  which  the  Senate  stands  in  their 
way.  For  the  time  being  they  are  not  only  checked,  but 
they  are  checkmated.  They  cannot  change  the  Constitu- 
tion without  the  consent  of  the  Senate.  They  must  bide 
their  time  and  depend  upon  the  slow  method  of  getting 
new  senators  by  an  indirect  process.  The  people  here 
recognize  themselves  as  sovereign,  and  have  checked 
themselves  in  such  a  multitude  of  ways  as  almost  to 
destroy  all  ideas  of  sovereignty.  The  English  have 
clung  to  the  forms  of  law  which  made  the  Monarch  sov- 
ereign, while  they  have  formed  a  democratic  government 
which  is  almost  entirely  devoid  of  legal  checks ;  and  the 
highest  reach  of  the  unchecked  Democracy  is  shown  in 
the  attainment  by  a  democratic  Cabinet  of  a  wide  range 
of  power  which  bears  the  name  "  Royal  Prerogative." 

We  have  now  to  consider  what  are  the  relations  of  the 
Monarch  to  the  conduct  of  governmental  business.  It 
would  be  looked  upon  as  highly  improper  and  uncon- 
stitutional for  the  Queen  to  attempt  to  influence  the 
judges  in  the  decision  of  cases  at  law.  It  has  come  to 
be  quite  out  of  harmony  with  tlie  Constitution  for  the 
Queen  to  attempt  directly  to  influence  the  action  of  Par- 
liament. Parliament,  as  we  have  seen,  is  a  place  for  party 
strife,  and  the  Queen  is  not  expected  to  be  a  partisan. 
But  it  is  not  in  conflict  with  the  Constitution  for  the 
Queen  to  attempt  to  influence  the  Ministers  in  matters 
of  administration.  As  has  already  been  explained,  the 
dominant  element  in  the  Executive  is  the  Cabinet,  and 
the  Queen  is  not  a  member  of  the  Cabinet,  though  she 
holds  a  close  official  relation  to  the  chief  Ministerial  offi- 
cers who  compose  it.      "To  state  the  matter  shortly," 


CHAP.  V  THE  CROWN  67 

says  Mr.  Bagehot,  "  the  Sovereign  has,  under  a  constitu- 
tional monarchy  such  as  ours,  three  rights,  —  the  right 
to  be  consulted,  the  right  to  encourage,  the  right  to 
warn.  And  a  king  of  great  sense  and  sagacity  would 
want  no  others.  He  would  find  that  his  having  no 
others  would  enable  him  to  use  these  with  a  singular 
effect.  He  would  say  to  his  minister  :  '  The  responsi- 
bility of  these  measures  is  upon  you.  Whatever  you 
think  best  must  be  done.  Whatever  you  think  best 
shall  have  my  full  and  effectual  support.  But  you  will 
observe  that  for  this  I'eason  and  that  reason  what  you  pro- 
pose to  do  is  bad  ;  for  this  reason  and  that  reason  what  you 
do  not  propose  to  do  is  better.  I  do  not  oppose,  it  is  my 
duty  not  to  oppose  ;  but  observe  that  I  warn.'  Suppose 
the  King  be  right,  and  to  have  what  kings  often  have,  the 
gift  of  effectual  expression,  he  could  not  help  moving  his 
Minister.  He  might  not  always  turn  his  course,  but  he 
would  always  trouble  his  mind."  ^  It  is  not  safe  to  accept 
this  description  as  setting  forth  the  style  of  intercourse 
which  actually  takes  place  between  the  Monarch  and  the 
Minister  without  considerable  modification,  but  it  indi- 
cates what  is  deemed  fit  in  the  attitude  of  the  Monarch 
towards  the  Minister. 

Notice  again  how  at  variance  are  the  forms  of  law  and 
the  requirements  of  the  Constitution.-  According  to  the 
forms  of  law  the  Monarch  is  the  executive,  the  Ministers 
are  simply  his  advisers.  According  to  the  Constitution 
the  Ministers  are  the  responsible  Executive,  while  the 
Monarch  has  simply  the  right  to  be  informed  as  to  what 
they  int-end  to  do,  and  to  give  advice.  It  is  not  neces- 
sary that  the  Ministers  should  follow  his  advice.  In  one 
respect  the  Sovereign's  case  is  not  different  from  that  of 
other  citizens.  It  is  regarded  as  the  especial  business  of 
the  Opposition  in  the  House  of  Commons  to  warn  and 
^  The  English  Constitution,  p.  143. 


r 


68  NATURE   OF  THE   ENGLISH  CONSTITUTION     chap,  v 

to  discourage  the  Queen's  Ministers.  Through  the  daily 
questioning  of  the  Ministers  in  the  House  of  Commons 
the  right  of  the  nation  to  be  informed  as  to  the  inten- 
tions of  the  Ministers  is  asserted  and  maintained.  And 
being  informed,  the  nation,  through  the  press,  through 
public  meetings,  and  in  many  other  ways,  exercises  the 
privilege  of  warning  or  encouraging.  Time  and  again 
a  hundred  thousand  people  have  assembled  in  Hyde  Park, 
London,  for  the  express  purpose  of  warning  the  Ministers 
that  a  proposed  action  would  not  be  for  the  good  of  the 
country,  and  a  Ministry  which  may  perchance  have  been 
deaf  to  the  warnings  of  the  Monarch  has  heeded  the 
warnings  of  the  multitude.  But  the  Monarch  has  a  right 
to  be  informed  of  the  intentions  of  the  Ministers  before 
they  are  made  public.  In  reply  to  questions  in  the  House 
of  Commons  a  Minister  sometimes  says  that  the  state  of 
public  business  is  such  that  he  thinks  it  best  to  withhold 
the  information  requested.  It  is  understood,  however, 
that  the  Ministers  have  no  right  to  withhold  information 
from  the  Queen  on  the  ground  of  the  exigencies  of  public 
business.  In  1851  Lord  Palmerston  was  dismissed  from 
the  office  of  Secretary  for  Foreign  Affairs,  partly  because 
he  neglected  to  give  to  the  Queen  the  information  which 
was  her  due,  and  partly  because  he  neglected  to  give 
due  information  to  his  associates  in  the  Cabinet.  It  is 
the  duty  of  the  Foreign  Secretary  to  keep  the  Queen  duly 
informed  as  to  all  matters  pertaining  to  foreign  relations, 
and  it  is  the  duty  of  the  Prime  Minister  to  keep  her  in- 
formed as  to  the  purposes  and  plans  of  the  Cabinet  in 
general.  As  will  be  explained  below,  the  Prime  Minister 
exercises  important  powers  apart  from  the  Cabinet  as  a 
whole.  So  also  each  member  of  the  Cabinet  as  the  head 
of  an  administrative  department  has  a  measure  of  indepen- 
dent power.  Mr.  John  Morley  mentions  as  a  practical 
power  still  left  to  the  Crown  that  the   Sovereign  may 


CHAP.  V  THE  CROWN  69 

demand  the  opinion  of  the  Cabinet  as  a  court  of  appeal 
against  the  Minister.^  This,  as  will  be  seen,  is  a  limita- 
tion upon  the  independent  power  of  the  Prime  Minister. 
It  does  not,  in  theory  at  least,  limit  the  power  of  the 
Cabinet  as  a  whole. 

The  Queen  being  placed  in  possession  of  the  secrets  of 
the  Government,  is  bound  not  to  use  her  knowledge  in 
any  way  to  thwart  the  plans  of  the  Ministers.  Early 
in  the  reign  of  the  present  Monarch  Sir  Robert  Peel,  as 
the  head  of  the  Ministry,  insisted  upon  the  right  of 
changing  the  ladies  of  the  Queen's  household  because  the 
places  were  held  by  the  wives  of  his  political  opponents, 
and  he  suspected  that  through  them  the  Opposition  was 
apprised  of  the  secrets  of  the  Government.  The  Sover- 
eign may  warn  his  Ministers,  he  may  try  to  dissuade 
them  ;  he  may  not  betray  them ;  it  is  his  duty  loyally 
to  support  them  in  the  policy  which  they  finally  adopt, 
however  much  it  may  be  opposed  to  his  personal  views. 

It  is  understood  that  the  relation  of  the  Monarch  to 
the  conduct  of  Foreign  Affairs  is  a  little  more  close  and 
intimate  than  his  relation  to  other  business.  The  Queen 
writes  personal  letters  to  other  monarchs.  Americans 
will  recall  the  letters  written  by  her  to  Mrs.  Lincoln  and 
to  Mrs.  Garfield.  She  was  by  common  consent  regarded 
as  the  fit  person  to  express  the  sympathy  of  the  English 
people  with  our  great  national  sorrows.  The  Queen  per- 
sonates the  people  as  does  no  other  official.  In  matters 
which  are  simply  personal,  matters  which  are  in  no  way 
connected  with  the  policy  of  the  Government,  the  Queen 
enjoys  something  like  the  same  freedom  in  her  corre- 
spondence which  others  enjoy.  Yet  it  is  found  difficult, 
in  practice,  for  the  Queen  to  correspond  with  the  mon- 
archs of  the  European  Continent  without  being  suspected 
of  interference  in  matters  of  state.  The  monarchs  of 
1  Walpole,  p.  159. 


70  NATURE  OF  THE  ENGLISH  CONSTITUTION     chap,  v 

Continental  Europe  personally  attend  to  important  mat- 
ters of  international  relations ;  the  English  Constitution 
denies  to  the  Queen  any  interference  in  such  affairs. 
Hence  complaints  have,  in  recent  years,  found  expression 
in  the  public  press  to  the  effect  that  the  Queen's  private 
correspondence  with  European  raonarchs  had  tended  to 
complicate  the  business  of  English  diplomacy.  The  Con- 
stitution requires  the  Ministers  to  inform  the  Queen  of 
their  plans  before  they  are  fully  matured,  and  it  seems 
to  be  equally  clear  that  the  Constitution  requires  the 
Queen  to  inform  the  Ministers  of  all  intended  personal 
communications  which  may  be  suspected  of  having  an 
influence  upon  matters  of  state. 

It  is  not  an  easy  matter  clearly  to  understand  just  how 
much  the  Monarch  does  influence  the  action  of  the  Execu- 
tive. Not  many  writers  have  attempted  to  analyze  carefully, 
and  to  separate  the  personal  factor  of  the  Monarchy  from 
the  Ministry.  Mr.  Bagehot  leaves  nothing  to  be  desired  so 
far  as  analysis  is  concerned.  He  makes  clear  enough  a 
theoretical  distinction  between  the  Monarch  and  the  Cabi- 
net. He  gives  many  facts  about  the  doings  of  former 
monarchs  at  a  time  when  the  Constitution  was  not  what 
it  is  to-day.  He  is  remarkably  explicit  and  detailed  in 
his  information  as  to  what  an  ideal  Monarch  might  do 
with  a  Cabinet  under  the  Constitution  as  it  is  to-day. 
Having  convinced  us  that  he,  above  all  others  who  have 
attempted  to  write  upon  the  subject,  was  capable  of 
illuminating  the  whole  line  of  contact  between  the 
actual  Monarch  and  the  actual  Constitution,  he  contents 
himself  with  a  ratlier  vague  remark  to  the  effect  that 
^^we  shall  never  know,  but  when  history  is  written, 
our  children  may  know,  what  we  owe  to  the  Queen  and 
Prince  Albert."  Mr.  Bagehot  is  definitely  opposed  to 
letting  the  light  shine  upon  certain  parts  of  the  Con- 
stitution.    He  says :  "  Above  all  things  our  royalty  is  to 


CHAP.  V 


THE  CROWN  71 


be  reverenced,  and  if  you  begin  to  poke  about  it,  you  can- 
not reverence  it.  When  there  is  a  select  committee  on 
the  Queen,  the  charm  of  royalty  will  be  gone.  Its  mys- 
tery is  its  life.  We  must  not  let  in  daylight  upon 
magic."  1  This  passage  from  Mr.  Bagehot  seems  eminently 
fitted  to  do  the  very  thing  which  he  says  ought  not  to  be 
done  ;  that  is,  to  destroy  reverence  for  monarchy.  His 
book  was  written  more  than  a  quarter  of  a  century  ago. 
In  its  tendency  to  destroy  superstition  and  reverence 
for  the  persons  of  monarchs  it  has  been  equal  to  a  good 
many  parliamentary  committees.  The  thing  that  Mr. 
Bagehot  was  especially  discussing  in  the  passage  quoted 
was  royal  prerogative.  And  Mr.  Dicey  has  shed  a  flood 
of  daylight  upon  this  subject.  The  matter  which  is 
still  left  in  doubt  is  the  amount  and  the  kind  of  influ- 
ence which  the  Queen  exerts  over  the  acts  of  the  Execu- 
tive. 

When  we  think  of  the  habit,  in  the  political  life  of 
England,  of  carefully  weighing  and  discussing  every  im- 
portant force,  and  observe  the  infrequency  of  any  allu- 
sion to  the  Queen  as  a  political  force,  we  should  naturally 
conclude  that  she  exerts  little  influence  of  any  kind.  Yet 
if  it  be  true  that  before  the  Ministry  commit  themselves 
to  an  important  line  of  administrative  policy  they  must 
get  their  plans  into  definite  shape  and  present  them  to  the 
Queen,  that  method  alone  would  have  no  small  influence 
over  the  executive  policy.  Even  if  the  Queen  at  such 
times  gives  none  of  the  wise  advice  which  Mr.  Bagehot 
supposes,  the  fact  that  the  Ministers  explain  their  policy 
to  such  a  personage  cannot  be  without  influence  upon  the 
policy.  In  like  manner,  if  the  Ministry  explain  in  advance 
their  legislative  programme,  the  mere  fact  of  having  thus  to 
explain  must  have  an  influence  upon  the  programme.  In 
this  way,  while  the  Queen  has  lost  every  trace  of  direct 
1  The  English  Constitution^  pp.  127-128. 


72  NATURE   OF  THE   ENGLISH   CONSTITUTION     chap,  v 

legislative  power,  yet,  in  consequence  of  this  connection 
with  the  Executive,  there  may  remain  to  the  Crown  more 
than  a  trace  of  legislative  influence.  In  the  making  of 
appointments  to  office  the  current  phrase  of  the  day  is 
that  the  Queen  appoints,  or  that  the  Cabinet  appoints. 
Now  if  the  Ministers  consult  the  Queen  in  the  matter  of 
appointments,  that  course  alone  would  exert  an  influence 
upon  appointments.  In  a  former  chapter  the  Queen's 
share  in  the  making  up  of  a  new  Ministry  has  been  ex- 
plained. In  ordinary  times  the  Queen's  share  is  mainly 
formal  and  unimportant.  The  impression,  however,  pre- 
vails that  the  preferences  of  the  Royal  Family  do  influence 
the  appointment  of  Ministers.  If  the  Queen  did  not  go 
through  with  the  form  of  appointing  the  Ministers,  then 
some  other  form  would  have  to  be  invented,  and  a  change 
of  form  would  be  likely  to  result  in  some  change  in  the 
character  of  the  business.  Mr.  Bagehot  discusses  certain 
conditions  under  which  it  may  be  possible  for  the  Mon- 
arch to  exercise  a  real  choice  in  naming  the  Prime  Minis- 
ter. Parties  may  be  equally  divided,  or  there  may  be 
more  than  two  parties,  no  one  of  them  commanding  a 
majority  in  the  House  of  Commons.  At  such  a  time  the 
Monarch  may  let  the  party  leaders  solve  the  difficulty  as 
best  they  can;  or,  if  the  Monarch  be  exceeding  wise,  he 
may  aid  in  solving  the  problem  by  divining  the  men  best 
fitted  to  unite  the  less  partisan  elements  from  different 
parties.  But  Mr.  Bagehot  is  careful  to  explain  that  at 
such  a  time  the  Monarch  is  likely  to  do  more  harm  than 
good,  and  that  in  nearly  all  cases  the  wisdom  of  the  Monarch 
will  manifest  itself  by  leaving  the  party  leaders  to  get  out 
of  the  difficulty  as  best  they  can.  So  in  the  matter  of 
driving  a  Ministry  from  office,  it  is  still  theoretically  pos- 
sible that  the  balance  of  other  political  forces  may  be 
such  that  the  will  of  the  Monarch  may  be  a  determining 
factor  in  a  change  of  the  Cabinet.     Here  again  a  truly 


CHAP.  V 


THE  CROWN  73 


wise  Monarch  will  almost  never  think  it  best  to  put  to  the 
test  this  theoretic  power. 

From  these  statements,  it  would  seem  that  the  power  of 
the  Crown  as  represented  in  the  person  of  the  Monarch 
is  not  great,  though  his  influence  may  be  much  more  than 
that  of  an  ordinary  citizen.  The  mere  fact  that  the  Cabi- 
net is  required  to  inform  the  Queen  of  its  intended  action, 
may  serve  greatly  to  modify  that  action.  As  the  fact  of 
the  continuance  of  the  forms  of  law  which  represent  the 
Monarch  as  the  source  of  power,  has  tended  to  the  devel- 
opment of  an  unchecked  Democracy,  so  it  is  not  unlikely 
that  the  habit  of  exempting  the  doings  of  the  Sovereign 
from  political  discussion,  is  now  tending  to  destroy  the 
political  influence  of  the  Crown.  As  the  consciousness 
of  the  democratic  character  of  the  Constitution  becomes 
more  general,  it  is  natural  that  every  important  political 
factor  shall  become  the  subject  of  political  debate.  To 
keep  the  Queen  out  of  the  field  of  debate,  it  is  likely  to 
be  more  and  more  necessary  to  minimize  her  political  in- 
fluence. It  has  been  possible  for  an  alert  ear,  at  any  time 
in  recent  years,  to  catch  the  sound  of  an  implied  censure 
of  the  Queen,  in  that  she  is  believed  to  have  been  more 
loyal  to  the  Government  when  Lord  Beaconsfield  or  Lord 
Salisbury  was  at  the  head  of  the  Cabinet,  than  she  has 
been  when  Mr.  Gladstone  was  Prime  Minister.  Probably 
no  one  is  in  a  condition  to  say  positively  that  the  Queen 
has  been  more  loyal  to  one  Ministry  than  to  another,  yet 
the  vague  belief  that  it  is  so  has  tended  to  develop  a  spirit 
of  unfriendly  criticism.  The  area  of  debate  is  sure  to  ex- 
tend with  the  consciousness  of  democracy.  There  is  likely 
to  be  forced  upon  the  Monarch  more  and  more  directly 
the  alternative  of  being  shorn  of  political  influence,  or  of 
being  brought  into  political  debate.  Circumstances  might 
easily  arise  in  which  the  fact  or  the  suspicion  that  the 
Monarch  favoured  a  certain  policy,  would  of  itself  be  a 


74  NATURE   OF  THE   ENGLISH  CONSTITUTION     chap,  r 

positive  force  against  the  policy.  A  secret  society  has 
not  a  fair  chance  in  a  successful  democracy;  it  is  almost 
sure  to  be  suspected  of  being  worse  than  it  really  is.  If 
mysterious  influences  associated  with  the  Monarch  cannot 
be  explained  and  defended  in  public  debate,  they  are  likely 
to  be  misrepresented  and  turned  to  a  bad  account. 

At  the  tomb  of  Washington  the  guide  is  accustomed  to 
say  to  the  visiting  pilgrims  that  during  the  Civil  War  the 
soldiers  of  both  armies  visited  the  grounds,  and  that  it 
was  their  custom  whenever  they  met  at  this  spot  to  lay 
down  their  arms  and  shake  hands  as  friends.  Americans 
cannot  be  enemies  at  the  tomb  of  Washington.  To  the 
American,  Washington  personates  the  deepest  feelings 
of  patriotism.  In  England,  the  Queen  is  the  sentimental 
head  of  the  nation,  and  conveniently  personates  the  feel- 
ing of  patriotism.  I  can  easily  believe  that  the  senti- 
ments that  gather  about  the  Monarch  are  a  force  of  some 
consequence  in  the  English  Government.  Mr.  Bagehot 
has  taken  large  account  of  these  sentiments.  He  repre- 
sents the  chief  function  of  the  Crown  to  be  that  of  delud- 
ing the  masses  of  the  people  into  the  belief  that  they  are 
really  governed  by  a  monarch,  thus  preventing  them  from 
injurious  meddling  with  the  real  Government.  I  do  not 
believe  the  English  people  ever  were  deluded  upon  this 
question  to  the  extent  that  Mr.  Bagehot  assumes.  I 
am  sure  they  are  not  so  deluded  now.  I  can  more 
easily  believe  that  the  few  who  have  felt  that  their  per- 
sonal interests  lay  in  the  perpetuation  of  the  high  preroga- 
tives of  the  Crown  have  been  deluded  into  the  notion 
that  it  was  to  their  advantage  to  maintain  all  the  forms 
of  royal  power,  and  that  they  have  not  perceived  that 
they  were  thus  contributing  to  the  formation  of  the  most 
absolutely  democratic  Constitution  that  has  yet  been  at- 
tempted in  any  country.  I  can  understand  how  an  in- 
structed  Democracy   may   insiist   on  perpetuating   these 


CHAP.  V  THE  CROWN  75 

forms  which  no  longer  delude  for  the  sake  of  perpetuating 
this  free  and  unchecked  democratic  government. 

From  this  description  it  is  evident  that  the  thing  of 
chief  constitutional  importance  about  the  Crown  is  the 
fact  that  it  is  made  the  centre  of  certain  legal  forms 
and  certain  formal  executive  acts  which  have  tended  to 
the  development  of  an  extreme  and  unchecked  Democ- 
racy. These  forms,  while  nominally  in  conflict  with  the 
Constitution,  are  in  their  practical  working  in  entire  ac- 
cord with  it.  Circumstances  might  arise  in  which  some 
of  these  forms  might  be  vitalized  into  organs  of  positive 
power.  Mr.  Dicey  has  suggested  a  plan  by  which  the 
Crown  may  be  brought  into  positive  touch  with  the 
democratic  Constitution.  He  proposes  that  it  shall  be 
made  the  duty  of  the  Queen,  in  the  case  of  laws  or  par- 
liamentary acts  which  are  deemed  to  be  of  unusual  impor- 
tance, to  commit  such  acts  to  a  vote  of  the  people  before 
they  shall  go  into  effect.  That  is,  the  Queen  shall  have 
the  power  of  a  discretionary  referendum.  The  Cabinet, 
when  balked  in  the  House  of  Commons,  may  dissolve 
Parliament  and  appeal  to  the  people  on  the  matter  at 
issue.  The  case  of  Mr.  Gladstone's  appeal  to  the  people 
on  his  first  bill  to  secure  an  Irish  Parliament  is  in  point. 
This  is  like  the  referendum^  in  that  the  people,  in  voting 
for  members  of  Parliament,  are  indirectly  giving  expres- 
sion on  the  chief  measure  in  debate  at  the  time. 

Again,  we  have  discussed  the  possibility  of  the  House 
of  Lords  fulfilling  the  function  of  securing  an  appeal  to 
the  people  on  important  measures  which  have  passed  the 
Commons  ;  as  in  the  case  of  Mr.  Gladstone's  second  Home 
Rule  Bill.  This  also  is  indirect.  The  obnoxious  meas- 
ure can  only  be  defeated  by  choosing  a  majority  of  the 
opposite  political  party.  But  Mr.  Dicey  proposes  that  the 
Monarch  shall  have  power  to  secure  a  direct  referendum. 
In  that  case  the  people  will  vote  for  or  against  the  law 


76  NATURE  OF  THE  ENGLISH  CONSTITUTION     chap,  v 

itself.  It  might  readily  happen  that  the  people  would 
at  the  same  time  defeat  a  measure  which  a  party  has 
passed  and  elect  a  majority  of  the  same  party  to  the 
House  of  Commons.  In  such  a  case  it  would  be  the 
duty  of  the  party  to  modify  its  policy  so  as  to  be  in 
accord  with  the  mandate  of  the  sovereign  people.  It  is 
possible  to  conceive  of  this  proposed  scheme  as  a  sort 
of  revitalization  of  the  now  defunct  power  of  royal  veto. 
The  Monarch  instead  of  exercising  the  power  in  person 
passes  it  on  to  the  real  sovereign,  the  people.  Certainly, 
there  can  be  no  objection  to  this  proposed  revival  of 
royal  power  on  account  of  its  lack  of  harmony  with  the 
democratic  Constitution. 


CHAPTER  VI 


THE  MINISTRY 


A  S  has  already  been  shown,  the  Cabinet  holds  impor- 
-^-^  tant  relations  to  the  House  of  Commons,  the  House 
of  Lords,  and  to  the  Crown.  Indeed,  the  Cabinet  is  the 
very  core  of  the  Constitution.  It  gathers  to  itself  the 
control  of  both  legislative  and  executive  business. 

The  following  were  the  members  of  the  Cabinet  in 
1896:  1.  Marquis  of  Salisbury,  Prime  Minister  and  Sec- 
retary of  State  for  Foreign  Affairs.  2.  Lord  Halsbury, 
Lord  High  Chancellor.  3.  Duke  of  Devonshire,  Lord 
President  of  Council.  4.  Viscount  Cadogan,  Lord  Privy 
Seal.  5.  Sir  Michael  E.  Hicks- Beach,  Chancellor  of  the 
Exchequer.  6.  Sir  Matthew  White  Ridley,  Bt.,  Secretary 
of  State  for  the  Home  Department.  T.  Mr.  Joseph 
Chamberlain,  Secretary  of  State,  Colonial  Department. 
8.  Marquis  of  Lansdowne,  Secretary  of  State,  War  De- 
partment. 9.  Lord  George  Francis  Hamilton,  Secretary 
of  State,  Indian  Department.  10.  Mr.  George  Joachim 
Goschen,  First  Lord  of  the  Admiralty.  11.  Mr.  Arthur 
James  Balfour,  First  Lord  of  the  Treasury  and  Leader 
of  the  Government  in  the  House  of  Commons.  12.  Lord 
Ashbourne,  Lord  Chancellor  of  Ireland.  13.  Earl  Cado- 
gan, Lord  Lieutenant  of  Ireland.  14.  Mr.  Charles 
Thompson  Ritchie,  President  of  the  Board  of  Trade. 
15.  Mr.  Walter  Hume  Long,  President  of  the  Board  of 
Agriculture.  16.  Lord  James,  Q.  C,  Chancellor  of  the 
Duchy  of  Lancaster.     17.  Mr.  Henry  Chaplin,  President 

77 


78  NATURE   OF   THE   ENGLISH  CONSTITUTION    chap,  vi 

of  the  Local  Government  Board.  18.  Lord  Balfour  of 
Burleigh,  Secretary  for  Scotland.  19.  Mr.  Aretas  Akers- 
Douglas,  Work  and  Public  Buildings. 

In  addition  to  these  there  were  about  thirty-seven  other 
high  offices  whose  occupants  were  in  the  Ministry,  but 
were  not  members  of  the  Cabinet.  The  line  between  the 
Cabinet  and  the  non-Cabinet  Ministers  is  not  definitely 
fixed.  There  are  about  ten  offices  whose  holders  are 
always  in  the  Cabinet,  and  about  as  many  more  whose 
occupants  may  be  in  the  Cabinet.  The  chief  factor  in 
determining  whether  a  particular  office  shall  be  repre- 
sented in  the  Cabinet  is  the  will  of  the  Prime  Minister 
and  those  most  intimately  associated  with  him.  When 
the  old  Cabinet  has  been  defeated,  and  the  Queen  sends 
for  the  leader  of  the  victorious  party,  everybody  under- 
stands that  he  is  to  be  the  new  Prime  Minister.  The 
Prime  Minister  consults  with  the  leaders  of  his  party 
nearest  to  him  in  rank,  and  they  parcel  out  among  them- 
selves the  chief  offices.  They  decide  what  members  of 
the  party  shall  be  invited  to  fill  the  non-Cabinet  offices  in 
the  Ministry,  and  what  places  shall  be  regarded  for  the 
time  as  of  Cabinet  rank.  That  is,  among  the  list  of 
doubtfuls,  they  determine  what  officers  shall  be  invited 
into  the  Cabinet.  In  Lord  Salisbury's  second  Ministry, 
1886-1892,  Mr.  Arthur  Balfour  was  Chief  Secretary  for 
Ireland,  and  not  in  the  Cabinet.  Later  he  held  the  same 
office,  and  was  a  member  of  the  Cabinet ;  while  in  Lord 
Salisbury's  third  Ministry  the  office  was  held  by  a  Minister 
not  of  Cabinet  rank.  In  the  second  Salisbury  Ministry 
the  Chief  Secretary  for  Scotland  was  at  first  a  member 
of  the  Cabinet,  and  later  that  office  was  filled  by  a  non- 
Cabinet  Minister. 

Sir  Michael  Hicks-Beach  was  a  member  of  the  Cabinet 
in  1888,  and  was  without  office.  This  was  unusual. 
Ordinarily  only  those  who  hold  important  offices  in  the 


CHAP.  VI 


THE   MINISTRY  79 


Ministry  are  members  of  the  Cabinet.  All  the  Ministers 
and  all  the  members  of  the  Cabinet  are  members  of  one 
of  the  Houses  of  Parliament.  Sir  Michael  was  of  course 
a  member  of  the  House  of  Commons.  The  peculiarity  in 
his  case  was  that  he  was  in  the  Cabinet  without  at  the 
same  time  holding  an  office.  There  are  in  all  about  sixty 
executive  offices  whose  occupants  must  have  a  seat  in 
Parliament.  Here  again  the  line  is  not  sharply  drawn. 
There  are  offices  which  may,  by  law,  be  represented  in 
Parliament,  but  which  are  not  thus  represented.  For 
instance,  there  were  in  the  second  Salisbury  Ministry 
forty  non-Cabinet  Ministers.  Only  those  executive  offi- 
cers who  are  in  Parliament  are  looked  upon  as  belonging 
to  the  Ministry.  In  the  efforts  to  reform  the  civil  service 
in  the  United  States  a  good  deal  of  difficulty  has  been 
encountered  in  the  effort  to  draw  the  line  between  the 
political  and  the  non-political  offices.  In  England  so  far 
as  home  offices  are  concerned  this  question  is  determined 
by  the  fact  of  membership  in  Parliament.  Those  are  the 
political  offices  which  the  Cabinet  determine  to  fill  with 
members  of  Parliament.  As  already  intimated,  the  laws 
do  not  permit  the  filling  thus  of  more  than  about  sixty 
offices.     A  smaller  number  is  usually  chosen. 

A  change  of  Ministry  involves  a  change  of  the  political 
officers  only.  The  great  body  of  the  public  servants 
remain*  in  office.  This  permanent  and  non-political  ad- 
ministrative force  exercises  an  important  influence  over 
the  political  officers.  Were  it  not  for  the  permanent 
force,  it  would  not  be  possible  for  the  Ministry  to  change 
so  frequently  without  bringing  chaos.  With  the  trained 
officials  at  hand  the  new  Minister  may  carry  on  the  busi- 
ness, and  at  the  same  time  devote  a  large  share  of  his 
time  and  attention  to  legislative  and  other  political  duties.^ 

The  executive  officers  other  than  the  Monarch  may  be 
1  See  Sidgwick,  Elements  of  Politics,  Chap.  XXI. 


80  NATURE   OF   THE   ENGLISH   CONSTITUTION    chap,  vi 

conveniently  divided  into  four  classes.  1.  The  Prime 
Minister.  2.  The  other  Cabinet  officers.  3.  The  Min-. 
isters  not  in  the  Cabinet.  4.  The  great  body  of  non- 
political  administrative  officers. 

As  early  as  1787  Gouverneur  Morris  in  the  conven- 
tion which  framed  our  federal  Constitution  spoke  of 
the  Prime  Minister  as  the  real  King  of  England. ^  Mr. 
Morris's  statement  may  have  been  a  slight  exaggeration 
at  the  time  it  was  made,  but  there  can  be  no  doubt 
of  the  substantial  accuracy  of  the  idea  expressed  as 
applied  to  the  Constitution  of  to-day.  The  Prime  Min- 
ister may  be  fitly  characterized  as  an  absolute  democratic 
Monarch.  Such  an  expression  seems  absurd,  but,  as  has 
been  already  intimated,  a  real  understanding  of  the  Eng- 
lish Constitution  involves  the  acceptance  of  a  good  many 
logical  absurdities.  An  absolute  Monarch  would  call  to  his 
aid  a  few  trusted  and  secret  advisers,  and  these  together 
would  proceed  to  govern  the  realm.  That  is,  they  would 
control  legislative,  executive,  and  judicial  business.  Now 
we  have  seen  in  former  chapters  that  the  Prime  Minister 
and  his  associates  control  legislative  and  executive  busi- 
ness. Through  the  power  of  legislation  and  the  power  of 
appointments  they  likewise  exercise  a  general  control  over 
the  judiciary.  It  should  be  observed,  however,  that  the 
Prime  Minister  does  not  personate  supreme  power;  he 
exercises  supreme  power.  The  Sovereign  is  the  personi- 
fication of  power.  The  Prime  Minister  personifies  politics. 
The  reality  of  his  power  is  greater  than  are  the  notions  of 
power  which  men  are  likely  to  associate  with  the  office. 
This  poAver  is  democratic  because,  as  formerly  shown, 
forces  are  constantly  at  work  which  make  it  possible  at 
any  time  for  the  Democracy  of  England  to  replace  the  one 
absolute  ruler  by  another  just  as  absolute.  The  Prime 
Minister  holds  his  office,  not  simply  in  theory  but  in  fact, 
1  Madison  Papers^  p.  361. 


CHAP.  VI  THE   MINISTRY  81 

by  the  will  of  the  people.  It  would  seem  that  the  English 
Constitution  has  gone  as  far  as  possible  in  the  direction 
of  combining  an  unchecked  Democracy  with  nearly  all 
that  is  substantial  in  an  absolute  Monarchy.  After  what 
has  already  been  said  it  seems  scarcely  necessary  to  state 
that  the  office  of  Prime  Minister  is  unknown  to  English 
law.  According  to  the  forms  of  law  the  Monarch  holds 
the  place  here  attributed  to  the  Prime  Minister.  Both 
the  office  and  its  distinctive  duties  belong  to  the  under- 
standings and  customs  of  the  Constitution.  It  would 
require  a  bold  constitution-maker  to  write  down  in  black 
and  white  the  work  of  the  Prime  Minister.  It  would 
doubtless  be  impossible  to  reduce  the  Constitution  to 
written  authoritative  form  without  diminishing  his  power. 
Moreover,  there  being  no  such  office  in  law,  of  course  no 
one  is  ever,  in  form,  appointed  to  the  office.  It  is  cus- 
tomary, though  not  invariably  so,  for  the  Minister  who  is 
made  First  Lord  of  the  Treasury  to  be  the  Prime  Min- 
ister. As  the  holder  of  the  legal  office  the  position  of 
the  Prime  Minister  does  not  differ  from  that  of  other 
members  of  the  Cabinet.  Among  his  peculiar  duties  as 
Prime  Minister  are  the  following  :  1.  He  forms  the  Cabi- 
net and  administers  discipline  to  refractory  members  of 
the  Ministry;  for  it  is  understood  that  the  will  of  the 
Prime  Minister  is  a  large  factor  in  determining  the  tenure 
of  office  in  the  Ministry.  2.  He  is  the  channel  of  com- 
munication between  the  Cabinet  and  the  Queen.  3.  If 
he  is  a  Commoner,  he  is  Leader  of  the  House  of  Commons. 
The  highest  reach  of  power  and  influence  is  not  attained 
for  the  office  of  Prime  Minister  unless  the  holder  of  the 
office  is  a  member  of  the  House  of  Commons.  In  that  case 
he  is  the  Leader  of  the  House,  and  has  thus  centred  in  him- 
self all  the  dominant  forces  of  the  empire.  If  the  Prime 
Minister  is  a  Lord,  then  the  office  is  divided,  and  the  lead- 
ership of  the  House  goes  to  another  member  of  the  Cabinet. 


82  NATURE   OF  THE   ENGLISH  CONSTITUTION    chap,  vi 

While  the  Prime  Minister  has  much  of  the  substance 
of  absolute  power,  he  is  not  an  autocrat;  his  power  is  not 
self -derived  nor  can  it  be  self-centred.  The  Prime  Min- 
ister usually  becomes  such  because  he  sees  more  clearly 
and  expresses  more  perfectly  than  do  other  men  the  domi- 
nant forces  at  work  in  the  mind  of  the  nation.  His  per- 
sonal power  is  greater  in  proportion  as  he  succeeds  in 
losing  himself  and  bringing  his  faculties  into  harmonious 
action  with  the  forces  which  exist  independently  of  him- 
self. 

The  Prime  Minister  has  some  duties  independent  of 
the  other  members  of  the  Cabinet,  though  the  other  mem- 
bers of  the  Cabinet,  as  such,  have  no  duties  independent 
of  the  Prime  Minister.  The  Cabinet  stands  together  as 
a  unit.  Its  meetings  are  secret;  no  record  is  made  of 
its  proceedings  ;  the  only  way  by  which  the  public  is 
apprised  of  its  action  is  by  noticing  what  tlie  Government 
doe^.  Mr.  Bagehot  gives  an  account  of  a  meeting  of  the 
Cabinet  at  which  the  members  were  divided  in  their 
opinions  as  to  what  the  probable  effect  of  a  proposed 
duty  on  corn  would  be  upon  the  price  of  corn.  Half  of 
them  thought  that  it  would  increase  the  price,  while  the 
others  thought  it  would  diminish  it.  The  Prime  Minister 
put  his  back  to  the  door,  and  said,  "  Now  is  it  to  lower 
the  price  of  corn,  or  isn't  it?  It  is  not  much  matter 
which  we  say,  but  mind,  we  must  all  say  the  same.'''^  It 
matters  not  how  greatly  the  Ministers  may  differ  in  their 
views  in  their  secret  meetings,  in  the  Parliament  and 
before  the  country,  so  far  as  possible,  they  are  expected 
to  speak  as  the  voice  of  one  man.^  If  a  particular  ^lin- 
ister  finds  that  his  conscience  will  not  permit  him  to  sup- 
port a  particular  measure  of  the  Cabinet,  it  is  his  duty 
to  resign  his  office  in  order  that  one  may  be  chosen  who 

1  The  English  Constitution^  p.  82. 

^  Alison,  Law  and  Custom  of  the  Constitution^  Part  II.,  pp.  119-120. 


CHAP.  VI  THE   MINISTRY  83 

can  work  in  harmony  with  the  Government.  When  Mr. 
Gladstone's  Government  began  the  war  in  Egypt,  in  1882, 
Mr.  Bright  resigned  his  office  and  left  the  Cabinet  because 
his  peace  principles  would  not  permit  him  to  give  his  sup- 
port to  a  war  policy.  This  exemplifies  the  principle  that 
each  member  of  the  Ministry,  so  long  as  he  consents  to 
remain  in  office,  is  bound  loyally  to  support  the  Govern- 
ment. 

The  Cabinet  formulates  the  policy  of  the  Government, 
both  legislative  and  executive.  It  then  becomes  the  duty 
of  all  the  Ministers  to  seek  to  carry  the  policy  agreed 
upon  into  successful  operation.  On  the  other  hand,  the 
Cabinet  and  the  Ministers  in  general  are  under  obligation 
to  render  support  to  each  Minister  in  matters  peculiar  to 
his  office.  It  is  the  aim  of  the  Opposition  to  find  out  all- 
the  weak  points  in  the  administration.  If  the  subject 
under  criticism  is  a  matter  of  executive  policy,  it  is,  in 
nearly  all  cases,  a  particular  Minister  who  receives  the 
brunt  of  the  attack,  and  it  is  then  the  duty  of  all  the 
members  of  the  Government  to  shield  and  defend  him 
as  best  they  can.  In  Lord  Salisbury's  first  Ministry  it 
was  Mr.  Balfour,  the  Irish  Secretary,  who  was  especially 
attacked  when  the  policy  of  the  Government  in  Ireland 
was  made  the  subject  of  criticism,  yet  it  was  expected 
that  all  the  Ministers  would  defend  Mr.  Balfour  so  long 
as  he  continued  to  be  an  approved  Cabinet  officer.  As  a 
general  rule,  the  entire  Cabinet  stands  or  falls  together. 
If  a  particular  Minister,  especially  if  a  Minister  of  Cabi- 
net rank,  becomes  so  unpopular  that  he  cannot  remain  in 
office,  the  entire  Ministry  resigns. 

In  discussing  this  subject  Mr.  Hearn  draws  a  pretty 
clear  line  of  demarcation  between  the  legislative  and  the 
executive  duties  of  the  Cabinet,  and  he  maintains  that  it 
is  the  administrative  functions  rather  than  the  legislative 
which  should  in  the  main  determine  the  life  of  a  Minis- 


84  NATUEE  OF  THE  ENGLISH  CONSTITUTION    chap,  vi 

try.i  According  to  his  view  the  Ministers  ought  not  to 
resign  simply  because  a  legislative  measure  which  they  have 
favoured  is  defeated,  unless  the  measure  proposed  is  in 
their  judgment  essential  to  their  administrative  policy. 
This  distinction,  however,  seems  to  be  little  recognized  in 
practice.  It  was  the  administrative  policy  of  Mr.  Glad- 
stone's Government,  as  shown  in  the  management  of 
affairs  in  Egypt,  which  led  to  its  overthrow  in  1885.  In 
the  same  year  a  member  of  the  Liberal  party  proposed 
and  carried  an  amendment  to  a  bill  introduced  by  the 
Tory  Government  which  favoured  the  policy  of  granting 
allotments  of  land  to  agricultural  labourers.  This  was 
accepted  as  a  vote  of  censure,  and  Lord  Salisbury's  Gov- 
ernment resigned.  The  next  year  it  was  the  defeat  of 
Mr.  Gladstone's  measure  for  the  establishment  of  an  Irish 
Parliament  which  led  to  his  resignation.  Later,  Lord 
Rosebery's  Cabinet  resigned  because  of  an  adverse  role 
against  an  administration  officer.  In  these  cases  there 
appears  to  be  no  tendency  to  discriminate  between  legis- 
lative and  administrative  policy  in  determining  the  life 
of  a  Ministry.  The  Ministers  stand  or  fall  together  on 
their  policy  as  a  whole.  The  Opposition  are  naturally 
inclined  to  assail  the  policy  at  its  weakest  point,  which 
may  be  a  defect  in  administration,  or  a  failure  in  legisla- 
tion, or  it  may  be  such  a  combination  of  the  two  as  to 
elude  strict  analysis. 

The  point  to  be  specially  noted  here  is  the  principle 
which  makes  all  the  Ministers  mutually  responsible  for 
each  other.  In  matters  of  administration  they  are  all 
equally  interested  in  avoiding  scandal,  because  a  scandal 
which  arises  from  the  fault  of  one  may  result  in  driving 
all  from  office.  The  non-Cabinet  Ministers  may  have  no 
share  in  formulating  the  legislative  policy  of  the  Govern- 
ment ;  yet  it  is  the  duty  of  each  Minister  to  give  his  sup- 
1  The  Government  of  England^  p.  241  et  seq. 


CHAt.  vt  THE  MINISTRY  85 

port  to  the  measures  which  the  Cabinet  brings  forth. 
These  non-Cabinet  Ministers  are  chosen  by  the  Prime 
Minister  with  the  avowed  object,  among  others,  of  secur- 
ing their  loyal  support  both  in  Parliament  and  before 
the  country.  If  a  Minister  cannot  be  thus  loyal,  it  is 
his  duty  to  give  place  to  one  who  can. 

The  Prime  Minister,  the  other  members  of  the  Cabinet, 
and  the  non-Cabinet  Ministers  are  all  members  of  the 
same  political  party,  and  are  compelled  by  virtue  of 
their  position  to  take  a  partisan  view  of  politics.  They 
are  the  party  in  power.  A  sharp  line  of  distinction  is 
drawn  when  we  pass  from  the  Ministry  to  those  who  act 
under  their  direction  in  the  administration  of  the  laws. 
These  are  compelled  by  virtue  of  their  position  to  take 
a  non-partisan  view  of  politics,  or,  at  least,  they  are  re- 
quired to  conduct  themselves  in  office  as  if  they  were 
equally  loyal  to  each  political  party.  They  are  not  mem- 
bers of  Parliament.  They  have  nothing  to  do  with  the 
business  of  outlining  policies.  It  is  their  duty  to  render 
their  best  service  in  carrying  into  effect  the  policy  which 
others  adopt.  This  is,  at  least,  their  theoretic  position. 
Mr.  Bagehot  intimates  that  the  permanent  Under-Secre- 
tary who  stands  next  to  the  responsible  Minister  does,  as 
a  matter  of  fact,  exert  an  important  modifying  influence 
over  the  policy  adopted :  yet  he  cannot  be  a  partisan. 
His  great  influence  arises  from  the  fact  that  he  is  not 
a  partisan.  He  becomes  an  expert  in  the  art  of  recon- 
ciling impossible  partisan  pledges  which  a  Minister  has 
made  with  an  actual  policy  which  will  not  injure  the 
service.  To  do  this  work  well  he  must  be  without 
partisan  bias.  He  must  have  equal  sympathy  with  the 
Radical  and  the  Tory,  and  render  equally  loyal  service 
in  helping  each  out  of  difficulties  which  have  arisen 
from  ill-advised  partisan  pledges.  The  Under-Secre- 
tary is  the  connecting  link  between  the  partisan  Min- 


86  NATURE   OF   THE   ENGLISH  CONSTITUTION    chap,  vi 

ister  and  the  army  of  non-partisan  officers  in  th^  civil 
service. 

The  non-ministerial  officers  in  the  service  are  entirely 
relieved  from  all  party  duties.  They  neither  support  nor 
oppose  the  party  in  power.  They  devote  themselves 
entirely  to  the  task  of  carrying  into  effect  the  policy 
adopted  by  the  responsible  Ministers.  They  may  vote 
at  elections  as  do  other  citizens,  but  they  may  not  take 
an  active  public  part  in  political  meetings. 

The  Privy  Council.  —  The  Cabinet  being  a  body  wholly 
unknown  to  English  law  cannot  as  a  Cabinet  give  advice 
to  the  Queen.  The  laws  assume  that  the  Monarch  acts 
upon  the  advice  of  individual  Ministers,  or  upon  the  advice 
of  the  Privy  Council.  So,  according  to  law,  the  Privy 
Council  is  the  source  of  responsible  administration.  But 
the  members  of  the  Cabinet  are  always  members  of  the 
Privy  Council.  On  its  executive  side  the  Cabinet  is  a 
committee  of  the  Privy  Council,^  whose  business  it  trans- 
acts ;  while  on  its  political  or  legislative  side,  the  Cabinet 
•is  often  called  a  Committee  of  the  House  of  Commons. ^ 
Besides  the  members  of  the  Cabinet  of  the  day,  the  Privy 
Council  consists  of  all  who  have  ever  been  Cabinet  officers, 
with  certain  other  high  officials  and  the  dignitaries  of  the 
Queen's  household,  altogether  numbering  at  present  two 
hundred  and  twenty.  As  will  be  shown  in  another  place, 
the  Privy  Council  still  has  some  judicial  business,  but  it 
has  lost  nearly  all  its  functions  in  the  business  of  admin- 
istration. 

The  history  of  the  Cabinet  is  the  history  of  the  en- 
croachment of  a  secret  body  unknown  to  the  law  upon 
the  legally  constituted  executive  body.  To-day  if  Par- 
liament wishes  to  commit  any  administrative  business  to 

1  Hearn,  The  Government  of  England,  p.  197  ;  Anson,  Law  and  Cus- 
tom of  the  Constitution,  Part  II.,  Chap.  III.,  Sec.  III. 

2  Sidgwick,  Elements  of  Politics,  p.  386. 


CHAF.fh        ^: J^ciTY  fjHE  MINISTRY  87 


an  eytoitiYe;J^?^j^niust  create  a  body  for  the  purpose, 
or  it  may  coimmt  the  matter  to  the  Privy  Council  or  to 
one  of  the  established  departments.  Several  of  the  exist- 
ing administrative  departments  were  in  former  times  con- 
nected with  the  Privy  Council.  The  Board  of  Trade  was 
for  a  time  a  committee  of  the  Privy  Council,  called  a 
"Committee  of  Council  for  Trade."  It  is  now  a  de- 
partment of  administration,  and  is  represented  in  the 
Cabinet.  By  an  act  of  1858  the  Privy  Council  was  re- 
quired to  supervise  local  authorities  in  the  execution 
of  certain  laws  for  the  preservation  of  health.  Later,  in 
1871,  these  functions  were  transferred  to  the  Local  Gov- 
ernment Board  and  were  thus  taken  out  of  the  hands  of 
the  Privy  Council.  The  Council  is  still  charged  with  the 
duty  of  executing  certain  laws  for  the  protection  of  do- 
mestic animals  from  contagious  diseases.  For  example, 
it  is  still  possible  for  the  ports  of  England  to  be  closed 
against  American  cattle  by  "  Orders  in  Council." 

By  far  the  most  important  duties  of  administration 
left  in  the  hands  of  the  ancient  Council  are  those  which 
pertain  to  the  execution  of  the  laws  for  public  education. 
This  important  business  is  not,  however,  committed  to 
the  Council  as  a  whole,  but  to  a  committee  consisting  of 
the  Lord  President  of  the  Council,  a  Vice-President  with 
a  staff  of  clerks.  The  President  of  the  Council  is  a  mem- 
ber of  the  Cabinet  by  virtue  of  his  office.  The  other  mem- 
bers of  the  Committee  are  usually  members  of  the  Ministry 
by  virtue  of  other  administrative  offices  which  they  hold. 
.That  is,  the  Committee  is  made  up  by  appointing  to  the 
various  offices  persons  of  ministerial  rank.  It  will  be 
seen  from  this  description  that  the  administration  of  the 
various  educational  acts,  while  in  form  placed  in  the  hands 
of  a  committee  of  the  Privy  Council,  is  in  fact  under  the 
control  of  the  Cabinet. 

The  Privy  Council  is  a  survival  in  the  English  Consti- 


88  NATURE   OF  THE  ENGLISH  CONSTITUTION    chap,  vi 

tution.  No  one  thinks  of  it  as  at  present  a  source  of 
independent  power  or  influence.  The  Cabinet  is  the  real 
Privy  Council.  Whenever  business  is  to  be  transacted 
which  the  forms  of  law  require  to  receive  the  sanction  of 
the  body  of  the  Queen's  responsible  advisers,  a  few  mem- 
bers of  the  Privy  Council  are  summoned  to  meet  the  Queen, 
and  the  business  is  transacted.  This  is  called  a  meeting  of 
the  Privy  Council,  though  it  may  be  attended  by  fewer  Min- 
isters than  an  ordinary  Cabinet  meeting.  It  may  even  con- 
sist of  a  single  Minister  in  attendance  upon  the  Queen. 


CHAPTER  VII 

THE  COURTS 

IN  the  American  Constitution  the  courts  of  law  hold 
an  important  place.  We  proceed  upon  the  theory 
that  our  Constitution  is  written ;  and  in  our  written 
constitutions,  state  and  national,  we  have  provided 
courts  for  the  purpose  of  passing  upon  the  laws  enacted 
by  the  legislatures  and  determining  their  constitution- 
ality. We  do  not  know,  therefore,  whether  a  govern- 
mental act  is  valid  or  not  until  a  court  of  competent 
jurisdiction  has  passed  upon  it.  We  depend  upon  our 
courts  to  tell  us  what  our  Constitution  means.  Our  real 
constitutions  are  thus  found  not  wholly  in  the  written 
documents  bearing  the  name,  but  in  the  decisions  of  the 
Supreme  Court  of  the  United  States  and  in  those  of 
the  highest  courts  in  the  various  states.  The  study  of 
the  American  Constitution  is  in  large  part,  from  begin- 
ing  to  end,  a  study  of  judicial  decisions.  One  who  begins 
his  study  of  constitutions  with  that  of  the  United  States 
is  surprised  at  the  omission  of  the  courts  in  the  brief 
descriptions  of  the  English  Constitution.  If  it  were  not 
for  this  peculiarity  whereby  the  courts  are  empowered  to 
make  void  a  legislative  act,  the  courts  would  not  be  made 
so  prominent  in  the  study  of  the  American  Constitution. 

In  order  to  get  a  clear  view  of  the  constitutional  posi- 
tion of  the  English  courts,  it  is  well  to  inquire  what 
would  be  the  relation  of  our  courts  to  the  working  of 
our  Constitution  if   they  were  stripped  of   the   peculiar 

89 


90  NATURE   OF  THE   ENGLISH   CONSTITUTION    chap,  vu 

power  of  balking  the  legislatures.  They  would  still  be 
prominent  agents  in  the  administration  of  the  law,  and  as 
such  would  have  an  important  modifying  influence  upon 
the  working  of  the  constitutions.  The  lower  adminis- 
trative officers  in  the  English  civil  service  exert  an  im- 
portant modifying  influence  upon  the  working  of  the 
Constitution  of  England,  blit  it  is  not  easy  to  explain  in 
detail  just  what  that  influence  is.  In  like  manner  the 
spoils  system  as  it  formerly  existed  in  our  civil  service  has 
been  recognized  as  a  noteworthy  factor  in  the  working  of 
our  Constitution;  yet  in  a  brief  treatise  upon  our  Consti- 
tution little  attention  is  given  to  these  lower  administra- 
tive officers.  Clearness  of  ideas  seems  to  require  that  the 
details  of  administration  should  be  separated  from  a  com- 
prehensive view  of  the  Constitution. 

The  Constitution  has  to  do  chiefly  with  the  balancing  of 
the  dominant  forces  of  government.  In  the  general  gov- 
ernment of  the  United  States  the  power  of  administration 
is  centred  in  the  President,  who  is  made  by  the  Constitu- 
tion the  responsible  head  of  the  Executive.  It  is  easy 
enough  to  say  in  general  terms  that  the  form  of  organi- 
zation of  the  various  administrative  departments  does 
effectually  modify  "the  action  of  the  President.  Yet  if 
one  should  undertake  to  state  in  detail  just  how  a  par- 
ticular subordinate  officer  or  a  particular  policy  deter- 
mines the  action  of  the  President,  he  would  probably  state 
things  that  are  not  true,  or  at  least  things  that  would  not 
be  believed.  Hence  it  has  come  to  pass  that  writers  on 
both  the  English  and  the  American  Constitutions  have 
either  omitted  from  the  discussion  detailed  treatment  of 
the  departments  of  administration,  or  they  have  not 
attempted  to  trace  their  connection  with  the  working  of 
the  Constitution.  To  discuss  the  details  of  administration 
in  a  description  of  the  Constitution  as  ordinarily  defined 
is  to  introduce  matter  which  appears  foreign  to  the  sub- 


CHAP.  VII 


THE   COURTS  91 


ject.  In  a  detailed  consideration  of  the  methods  of  ad- 
ministration, the  question  of  primary  interest  is  seldom  a 
constitutional  one.  This  analysis  is  given  for  the  purpose 
of  making  the  American  student  understand  how  it  is 
that,  but  for  the  fact  that  American  courts  can  make  void 
legislative  acts,  their  constitutional  importance  would  in 
large  part  drop  out  of  sight. 

In  all  the  lines  of  action  in  which  the  courts  are  now  in 
conflict  with  the  legislatures,  they  would  in  the  case  sup- 
posed become  agents  for  carrying  into  effect  the  acts  of 
the  legislature.  From  the  standpoint  of  the  Constitution 
the  courts  would  be  analogous  to  subordinate  agents  in 
the  Executive.  All  would  concede  that  the  courts  thus 
viewed  were  important  constitutional  agents,  but  a  few 
vague  generalities  would  exhaust  the  subject.  It  would, 
however,  be  a  great  error  to  suppose  that  this  analogy 
between  the  courts  and  the  subordinate  administrative 
offices  exhausts  the  case  of  the  relation  of  the  courts  to 
the  Constitution  either  in  England  or  in  America. 

Judicial  business  should  be  sharply  distinguished  from 
ordinary  administration,  even  in  those  lines  of  action  in 
which  the  resemblance  is  strongest.  The  administrative 
officer  applies  the  law  to  the  business  in  hand,  and  inci- 
dentally he  is  required  to  interpret  the  law.  Yet  it  is 
not  his  business  to  interpret  law;  it  is  his  business  to  do 
the  things  which  the  law  enjoins.  Courts  are  provided 
for  the  express  purpose  of  interpreting  law.  If  a  citizen 
objects  to  the  application  of  the  law  as  interpreted  by 
the  administrative  officer,  he  may  bring  an  action  in  the 
courts  to  protect  himself  from  such  wrong  interpreta- 
tion. The  highest  court,  having  jurisdiction  in  a  given 
case  arising  under  the  law,  is,  therefore,  the  final  inter- 
preter of  the  law.  In  this  way  the  courts,  even  though  they 
have  not  under  the  Constitution  any  power  to  traverse 
the  action  of  the  legislature,  may  give  to  a  law  a  different 


92  NATURE  OF  THE  ENGLISH  CONSTITUTION    chap,  vir 

meaning  from  the  one  originally  intended.  Judges  who 
should  deliberately  use  this  power  to  overrule  the  legislat- 
ure would  be  subject  to  censure,  and  presumably  they 
might  be  impeached  for  it.  Yet  no  fact  is  better  attested 
than  that  courts  of  law,  through  the  process  of  interpreting 
and  applying  the  laws,  are  constantly,  although  usually 
unconsciously,  modifying  laws ;  and  that  in  course  of  time 
they  may  change  their  meaning.  It  may  be  said  that 
administrative  officers,  by  the  process  of  applying  a  law 
to  the  changing  circumstances  which  arise,  likewise  modify 
it  and  give  new  meaning  to  its  provisions.  But  there  is 
this  difference  :  an  administrative  interpretation  may  be 
taken  to  a  court  and  changed,  and  if  an  administrative 
officer  does  not  follow  the  direction  of  the  court  in  the 
matter  he  may  be  arraigned  and  punished.  Yet  judicial 
officers  may  not  be  punished  for  a  given  mode  of  applying 
the  law,  except  by  the  almost  unused  process  of  impeach- 
ment. 

Theoretically,  a  legislature  which  is  under  no  constitu- 
tional limitations  may  always  change  the  law  if  an  unac- 
ceptable interpretation  be  given  its  acts ;  yet  it  is  not 
practically  possible  for  the  legislature  to  provide  explic- 
itly for  the  infinite  details  of  administration.  From  the 
nature  of  the  case  a  wide  field  must  be  left  for  discre- 
tionary action.  In  this  field  the  courts  rather  than  the 
officers  of  administration  are  the  final  determiners  of 
the  specific  meaning  or  intention  of  the  law-makers.  If 
the  administrative  officers  refuse  to  carry  into  effect  the 
law  as  interpreted  by  the  courts,  these,  under  certain  con- 
ditions, issue  orders  to  the  officers  and  compel  them  to 
administer  it.  If  the  administrative  officer  attempts  to 
apply  the  law  in  a  manner  contrary  to  judicial  interpre- 
tation, the  courts  may  be  used  to  protect  the  subject  from 
his  action.  From  this  it  appears  that  the  courts,  without 
the  American  peculiarity,  serve  as  a  check  or  modifying 


CHAP.  VII  THE   COURTS  93 

influence  upon  the  legislature  and  upon  the  administrative 
officers,  and  that  they  are,  therefore,  more  important  consti- 
tutional factors  than  are  the  lower  administrative  officers. 

But  there  is  a  large  department  of  judicial  action  in 
England,  in  which  the  courts  do  not  profess  to  be  con- 
trolled by  the  action  of  the  legislature.  They  apply  rules 
and  principles  which  are  believed  to  have  had  no  distinc- 
tively legislative  origin,  but  which  have  arisen  from  cus- 
tom and  judicial  action.  Modern  legislatures,  English  and 
American,  simply  assume  the  existence  of  a  common  law 
and  leave  to  the  courts  the  task  of  determining  what  it 
is,  and  of  applying  it  to  ever-changing  conditions.  It  is 
true  that  by  specific  act  the  legislature  may  change  or 
supplant  the  common  law;  yet  here  again  habit  and  neces- 
sity are  a  stubborn  barrier  against  change.  It  is  still 
true,  notwithstanding  many  statutory  modifications  and 
reforms,  that  the  courts  both  in  England  and  America  are 
in  possession  of  large  and  important  powers  derived  simply 
from  ancient  custom  and  from  the  necessities  of  govern- 
ment. As  these  powers  have  never  been  clearly  defined, 
and  have  seldom  been  made  a  subject  of  constitutional 
debate,  little  can  be  done  except  to  recognize  their  exist- 
ence and  to  classify  them  as  ill-defined  influences  affecting 
the  Constitution. 

While  one  of  the  most  striking  differences  between  the 
English  Constitution  and  the  American  is  found  in  that 
judicial  function  whereby  an  American  court  may  make 
void  a  legislative  act,  the  most  striking  similarities  of  the 
two  constitutions  are  found  in  the  organization  of  the 
courts  in  the  two  countries  and  in  their  ordinary  judicial 
functions.  In  all  our  constitutions,  state  and  federal,  are 
found  clauses  affirming  in  general  terms  certain  inviolable 
rights  of  the  citizen.  In  America  the  courts  are  accus- 
tomed to  protect  the  citizen  in  the  enjoyment  of  the  rights 
thus  enumerated,  by  restraining  both  the  Legislature  and 


94  NATURE   OF   THE   ENGLISH   CONSTITUTION    chap,  vii 

the  Executive.  The  Bills  of  Rights  in  American  consti- 
tutions contain  enumerations  of  all  the  clearly  definable  per- 
sonal rights  named  in  Magna  Charta,  the  Petition  of  Right, 
the  Habeas  Corpus  Act,  and  the  English  Bill  of  Rights, 
and  many  others  not  found  in  any  of  those  documents. 

The  courts  of  England  perform  the  same  function  of 
protecting  the  citizen  against  violations  of  the  provisions 
of  these  laws  on  the  part  of  the  Executive,  but  they  are 
powerless  to  protect  the  citizen  against  violations  of 
Magna  Charta  or  any  English  law  by  the  Legislature. 
Parliament  might  at  any  time  amend  or  abolish  Magna 
Charta,  and  the  courts  could  not  protect  the  citizen  from 
the  parliamentary  act.  The  personal  rights  which  the 
citizens  of  England  and  America  enjoy  are  almost  identical. 
The  citizen  of  either  country  is  accustomed  to  look  to  his 
Constitution  as  the  source  and  the  guaranty  of  his  rights, 
but  in  America  a  much  larger  proportion  of  these  rights 
is  explicitly  enumerated  in  the  constitutions  and  the  laws. 
Some  of  the  state  constitutions  provide  that  the  enumera- 
tion of  certain  rights  in  the  Constitution  shall  not  be  so 
construed  as  to  impair  other  rights,  not  there  named,  which 
the  people  enjoy.  Yet  nearly  all  rights  which  are  liable 
to  be  drawn  into  controversy  are  enumerated  in  the  Con- 
stitution and  the  laws.  In  England  this  is  not  the  case. 
Many  of  the  most  commonly  controverted  rights  enu- 
merated in  all  American  constitutions,  state  and  federal,  are 
not  mentioned  in  Magna  Charta,  or  in  any  of  the  statutes 
of  England.  A  good  illustration  of  this  may  be  found  in 
the  right  of  freedom  of  speech.  No  law  or  constitutional 
provision  secures  to  the  Englishman  any  such  right ;  yet 
the  Englishman  is  as  secure  in  its  possession  as  is  the 
American.  The  English  courts  protect  the  citizen  in  the 
right  to  speak  and  publish  because  there  is  no  law  against 
it.i 

1  Dicey,  The  Law  of  the  Constitution,  p.  251. 


CHAP.  VII 


THE   COURTS  95 


There  are  two  fundamental  principles  in  tlie  English 
Constitution  out  of  which  has  come  a  large  measure  of 
personal  freedom.  These  are,  first,  the  principle  of^ 
equality  before  the  law ;  and  second,  that  the  presump- 
tions of  law  should  be  in  favour  of  the  liberty  of  the 
subject.  These  principles  are  derived  from  no  written 
document,  but  they  have  a  judicial  origin.  From  them 
are  derived  the  right  of  free  discussion,  the  right  of  pub- 
lic meeting,  and  a  multitude  of  rights  and  privileges 
enumerated  in  our  state  constitutions.  It  will  be  seen 
from  this  that  the  English  courts  have  an  even  more  con- 
spicuous share  in  making  that  part  of  the  Constitution 
which  secures  to  the  citizen  his  personal  rights  than  have 
the  American  courts.  Our  American  courts  make  consti- 
tutional provisions  under  the  guise  of  efforts  to  give  mean- 
ing to  a  written  document.  The  English  courts  make 
important  constitutional  provisions  by  the  application  of 
principles  which  the  court  itself  is  the  first  to  enunciate. 
In  America  the  courts  protect  the  citizen  against  the 
action  of  legislatures.  In  England  it  is  the  Executive 
alone  which  the  courts  restrain.  From  the  courts  of  Eng- 
land has  come  the  doctrine  that  all  officers  are  subject 
to  the  law,  that  the  Monarch  himself  has  no  power  to  do 
violence  to  the  law  of  the  land  ;  that  a  citizen  who  suffers 
injury  at  the  hands  of  an  officer  may  recover  damages  in 
an  ordinary  court. 

The  famous  documents  which  are  regarded  as  part  of 
the  Constitution  of  England  had  their  origin  in  conflicts 
with  tyrannical  kings,  and  mark  important  stages  in  the 
progress  of  liberty.  But  the  citizen  of  England  searches 
those  documents  in  vain  for  a  complete  statement  of  the 
many  rights  which  he  knows  himself  to  enjoy  under  the 
English  Constitution.  By  far  the  larger  part  of  these 
are  specified  in  judicial  acts  restraining  the  hand  of  the 
Executive.     It  is  possible,  also,  to  find  in  the  action  of 


96  NATURE   OF  THE  ENGLISH  CONSTITUTION    chap,  vii 

English  courts  a  foreshadowing  of  that  transcendent  judi- 
cial function  of  making  void  a  legislative  act  which  has 
been  embodied  in  the  American  constitutions.  While  Eng- 
lish courts  have  always  bowed  to  the  will  of  the  high  court 
of  Parliament,  it  has  ever  been  their  custom  to  nullify  the 
acts  of  inferior  legislative  bodies  when  they  deemed  those 
acts  to  be  inconsistent  with  the  statutes  of  Parliament  or 
not  in  harmony  with  the  law  of  the  land.  English  courts 
have  not  hesitated  to  nullify  acts  of  town  councils,  and 
this  power  to  revise  or  set  aside  by-laws  extends  to  those 
passed  by  colonial  legislatures.  When  the  Thirteen  Colo- 
nies of  America,  having  declared  themselves  independent 
of  the  English  government,  adopted  constitutions  which 
gave  to  courts  of  their  own  the  power  to  nullify  acts  of 
the  legislature,  they  but  transferred  to  these  courts  a 
power  which  had  been  exercised  over  the  colonial  legis- 
latures by  English  courts.  When,  a  few  years  later, 
delegates  from  the  states  framed  a  Constitution  for  the 
federal  government,  they  extended  this  function  to  the 
Supreme  Court  of  the  United  States. 

The  judicial  business  in  England  is  in  the  hands  of  the 
several  following  judicial  bodies.  In  the  first  place,  the 
House  of  Lords  is  the  court  of  final  appeal  for  cases  aris- 
ing in  the  United  Kingdom.  According  to  law  all  the 
Lords  have  a  right  to  participate  in  the  judicial  business 
of  the  House  ;  but  it  has  now  come  to  be  one  of  the  well- 
settled  understandings  of  the  Constitution  that  the  judicial 
business  is,  in  fact,  confined  to  a  few  members.  These 
are:  first,  the  Lord  High  Chancellor;  second.  Lords  of 
Appeal  in  Ordinary;  third,  such  other  Lords  as  are 
holding,  or  have  held,  high  judicial  offices.  The  Lords  of 
Appeal  are  four  in  number  and  are  appointed  for  the  ex- 
press purpose  of  furnishing  to  the  House  high  judicial 
ability  to  perform  this  highest  judicial  function.  Much 
of  the  judicial  business  is  transacted  by  the  Lord  High 


CHAP.  VII 


THE  COURTS  97 


Chancellor  and  the  four  Lords  of  Appeal.  These  are  re- 
garded as  preeminently  the  Law  Lords,  and  are  life  mem- 
bers of  the  House  of  Lords.  They  may  participate  in  all 
the  non-judicial  as  well  as  the  judicial  business  of  that 
chamber.  They  differ,  however,  from  other  Lords  in  that 
the  Peerage  does  not  descend  to  their  oldest  sons.  When 
a  vacancy  occurs,  an  eminent  jurist  is  appointed  by  the 
Crown  to  fill  it.  It  will  be  observed  that  the  Lord  High 
Chancellor,  who  is  the  presiding  officer  of  the  House  of 
Lords  and  the  chief  of  the  Law  Lords,  is  at  the  same  time 
a  member  of  the  Cabinet.  It  is  as  if  the  Chief  Justice  of 
the  United  States  presided  over  the  Senate  and  was  at 
the  same  time  a  member  of  the  President's  Cabinet.  The 
English  Cabinet  is  an  intensely  partisan  body.  The 
court  of  last  appeal  is,  according  to  wisest  tradition, 
furthest  removed  from  partisan  politics.  Yet  the  Lord 
Chancellor  is  a  member  of  both. 

We  are  accustomed  to  think  of  the  House  of  Lords  as  a 
branch  of  the  legislature;  yet,  as  explained  in  the  pre- 
vious paragraph,  the  House,  acting  through  a  few  of  its 
members,  is  the  highest  court  of  appeal  for  the  United 
Kingdom  of  Great  Britain  and  Ireland.  The  Privy  Coun- 
cil we  are  accustomed  to  regard  as  an  executive  body, 
but  the  Privy  Council  is  also  a  court  of  last  appeal  for 
cases  arising  outside  of  the  United  Kingdom,  in  India 
and  in  the  Colonies.  The  Privy  Council  also,  in  conjunc- 
tion with  certain  ecclesiastical  officers,  hears  appeals  from 
ecclesiastical  courts.  The  judicial  business  of  the  Coun- 
cil is  performed  through  a  committee,  known  as  the  Judi- 
cial Committee  of  the  Privy  Council.  This  Committee  is 
composed  of  the  Lord  President,  the  Lord  Chancellor,  the 
Lords  of  Appeal,  and  other  high  officials  who  are  members 
of  the  Privy  Council.  It  will  be  observed  that  the  Com- 
mittee is  composed  in  large  part  of  the  men  who  are  Law 
Lords.     The  Lord  Chancellor  and  the  Lords  of  Appeal 


98  NATURE   OF  THE   ENGLISH   CONSTITUTION    chap,  vii 

are  thus  active  members  in  each  court.  The  Lord  Presi- 
dent of  the  Council  is  a  Cabinet  officer,  and  is  also  usu- 
ally a  Peer.  Though  a  member  of  the  Judicial  Committee, 
he  is  not  in  all  cases  a  lawyer.  The  House  of  Lords  and 
the  Privy  Council  are  thus  both  courts  of  final  appeal,  the 
division  of  business  between  them  being  in  the  main  geo- 
graphical. The  Privy  Council  is  of  especial  interest  to 
Americans,  because  it  is  with  this  part  of  the  government 
that  the  Colonies  had  most  to  do  ;  and  it  was  the  action 
of  the  Council  in  nullifying  acts  of  colonial  legislatures 
which  furnished  a  sort  of  precedent  for  conferring  this 
high  function  upon  American  courts. 

When  the  House  of  Lords  acts  as  a  court,  the  form  of 
procedure  is  the  same  as  in  case  of  legislative  business. 
Speeches  are  made  for  and  against  the  measure.  A  vote 
is  taken,  and  a  decision  is  reached  in  accordance  with  the 
vote  of  the  majority.  The  Law  Lords  are  not  distin- 
guished, as  a  body,  from  other  Lords  by  any  formal  act. 
That  is,  they  are  not  in  form  a  committee  of  the  House. 
It  is  by  mere  understanding  that  the  Law  Lords  are  re- 
lieved from  the  interference  of  other  members,  and  that, 
while  thus  acting  alone,  they  represent  the  entire  House. 
The  Law  Lords  are  accustomed  to  hold  sessions  while 
Parliament  is  not  in  session. 

The  judicial  officers  in  the  Privy  Council  are  in  form, 
as  well  as  in  fact,  a  committee  of  the  Council.  The  Coun- 
cil being  an  executive  body  in  its  form  of  organization, 
the  action  of  the  Judicial  Committee  assumes  the  form  of 
an  executive  act.  The  Committee  deliberates  in  secret, 
and  their  decision  takes  the  form  of  a  statement  of  reasons 
why  the  Committee  advises  the  Queen  to  affirm  or  reverse 
the  decision  in  question.  Only  the  opinion  of  the  major- 
ity is  given  in  case  of  a  decision  by  the  Committee.  In 
case  of  a  decision  by  the  Lords,  the  opinion  of  all  who 
take  part  in  the  discussion  which  precedes  the  vote  is 
made  a  matter  of  record. 


CHAP.  VII  THE  COURTS  99 

Next  to  the  House  of  Lords  and  the  Judicial  Committee 
of  the  Privy  Council  stands  the  Supreme  Court  of  Judica- 
ture. Yet  under  this  title  the  Court  performs  no  judicial 
acts,  its  judicial  business  being  transacted  through  its  two 
divisions,  the  Court  of  Appeal  and  the  High  Court  of  Jus- 
tice. The  Supreme  Court  as  a  whole  may,  however,  draw 
up  rules  for  the  guidance  of  these  divisions.  The  High 
Court  of  Justice  has  three  divisions,  viz. :  1.  The  Chan- 
cery Division.  2.  The  Queen's  Bench.  3.  The  Probate, 
Divorce,  and  Admiralty  Division.  There  are  thus  in  what 
is  called  the  Supreme  Court,  four  separate  courts.  The 
Court  of  Appeal  is  composed  of  nine  judges,  three  of  whom 
are  presidents  of  the  three  divisions  of  the  High  Court  of 
Justice.  From  each  of  the  three  divisions  of  the  High 
Court,  appeal  may  be  taken  to  the  Court  of  Appeal,  and 
from  the  Court  of  Appeal  to  the  House  of  Lords.  The 
Chancery  Division  is  composed  of  five  justices  besides  the 
Lord  High  Chancellor,  who  presides.  In  the  Queen's 
Bench  Division  are  fifteen  justices,  one  of  whom  is  the 
Lord  Chief  Justice.  In  the  Probate  Division  are  two 
justices.  If  we  add  these  to  the  nine  judges  of  the  Court 
of  Appeal,  we  get  the  number  thirty-two,  yet  there  are  in 
the  Supreme  Court  only  twenty-nine.  The  discrepancy 
arises  from  the  fact  that  in  a  few  instances  the  same  indi- 
viduals are  members  of  more  than  one  division.  The 
Lord  High  Chancellor  is  not  only  a  Law  Lord  and  a  mem- 
ber of  the  Judicial  Committee  of  the  Privy  Council,  but 
he  is  also  a  member  ex  officio  of  the  Court  of  Appeal,  and 
is  President  of  the  Chancery  Division  of  the  High  Court 
of  Justice.  Likewise  the  Lord  Chief  Justice,  in  addition 
to  his  membership  in  the  two  courts  of  final  appeal,  is  a 
member  ex  officio  of  the  Court  of  Appeal,  and  a  member 
of  the  Queen's  Bench  Division  of  the  High  Court.  The 
justices  of  the  High  Court  hold  sittings  in  various  parts 
of  England. 


100  NATURE   OF  THE  ENGLISH  CONSTITUTION    chap,  vii 

That  branch  of  the  Supreme  Court  which  bears  the 
name  Court  of  Appeal  holds  its  sittings  only  in  London. 
It  is  composed  of  the  Master  of  the  Rolls  and  five  Lords 
Justices,  and  it  usually  sits  in  two  divisions,  three  Lords 
Justices  sitting  together,  though  for  certain  purposes  two 
are  sufficient.  In  this  way  its  capacity  for  transacting 
business  is  doubled.  Each  branch  is  treated  as  the  full 
Court  of  Appeal,  and  the  appeal  from  its  decisions  is  to 
the  House  of  Lords.  The  other  branch  of  the  Supreme 
Court,  which  bears  the  name  High  Court  of  Justice,  also 
through  its  three  divisions,  the  Court  of  Chancery,  the 
King's  Bench,  and  the  Probate  Court,  holds  sittings  in 
London;  and  it  also,  through  its  justices,  holds  sittings 
in  the  various  shires  and  assize  towns  in  England,  with 
two  or  more  justices  sitting  together,  or,  in  an  assize 
town,  with  only  one  justice.  Each  of  these  is  a  session  of 
the  High  Court  of  Justice,  and  an  appeal  from  its  deci- 
sions goes  to  the  Court  of  Appeal.  It  is  by  this  subdivi- 
sion into  many  coordinate  parts  that  the  High  Court  of 
Justice  is  enabled  greatly  to  increase  its  capacity  for 
transacting  business. 

The  various  divisions  of  the  High  Court  of  Justice 
have  original  jurisdiction  in  all  sorts  of  cases  at  law,  but 
the  number  of  judges  is  not  adequate  for  the  trial  of  all 
cases.  A  large  part  of  the  judicial  business  is  therefore 
performed  by  County  Courts  established  in  1846.  Eng- 
land and  Wales  are  divided  into  about  five  hundred  dis- 
tricts, and  these  districts  are  grouped  into  fifty  circuits. 
A  county  judge  is  appointed  for  each  circuit,  who  holds 
a  court  in  each  of  the  districts  of  his  circuit.  In  the 
making  of  these  districts  and  circuits,  no  attention  is  paid 
to  county  lines.  Ordinary  civil  cases  involving  £50  or 
less  may  be  tried  in  this  court.  Certain  other  cases,  as 
an  action  for  the  partition  of  an  estate  or  for  the  wind- 
ing up  of  a  partnership,  may  be  tried  in  this  court  even 


CHAP,  vii  THE   COURTS  101 

though  the  amount  involved  is  c£500.  If  a  case  which 
may  by  law  be  tried  in  this  court  be  taken  by  the  plain- 
tiff to  the  High  Court,  the  judge  may  order  it  back  to 
the  county  court,  or  he  may  refuse  to  allow  the  plaintiff 
a  larger  sum  for  the  costs  of  the  suit  than  would  have 
been  allowed  in  the  county  court.  For  these  reasons  the 
county  courts  do  nearly  all  the  business  permitted  by 
law. 

The  court  whose  jurisdiction  corresponds  to  the  county 
area  is  the  old  court  of  Quarter  Sessions.  This  court  has 
four  regular  meetings  annually.  It  is  usually  attended 
by  a  number  of  the  justices  of  the  peace,  and  it  requires 
two  or  more  of  the  justices  sitting  together  to  constitute 
a  court.  It  has  jurisdiction  over  a  great  variety  of 
"crimes.  The  laws  specify  a  few  of  the  higher  crimes 
which  this  court  may  not  try,  but  it  may  try  all  others. 
By  various  special  acts,  two  or  more  of  the  justices  are 
empowered  to  hold  courts  of  equal  grade  with  the  court 
of  Quarter  Sessions.  There  are  also  many  petty  offences 
which  may  be  tried  in  a  summary  way  by  one  justice  of 
the  peace.     This  is  called  a  court  of  Petty  Sessions. 

Until  1888,  when  the  County  Councils  were  created, 
the  justices  of  the  peace  in  the  court  of  Quarter  Sessions 
attended  to  a  great  variety  of  county  business  of  admin- 
istrative and  legislative  character.  It  still  has  power  to 
license  the  sale  of  liquor. 

The  courts,  for  the  most  part,  are  free  from  partisan 
strife.  Their  position  is  clearly  defined,  and  the  question 
of  encroachment  upon  other  governmental  powers  is  sel- 
dom raised.  It  will  be  seen,  however,  when  we  trace  the 
development  of  the  Constitution,  that  this  was  not  always 
the  case,  that  in  the  earlier  time  the  courts  were  emi- 
nently political,  that  they  were  an  important  factor  in 
determining  the  relations  of  the  Crown,  the  Church,  the 
Parliament,  and  other  governmental  agencies  to  each  other. 


102  NATURE   OF  THE  ENGLISH  CONSTITUTION    chap,  vii 

It  will  be  seen  that  in  still  earlier  times  there  existed  no 
separate  judiciary  in  the  modern  sense,  judicial  business 
being  not  distinguished  from  other  governmental  busi- 
ness. There  are,  indeed,  certain  features  of  the  present 
organization  which  are  explained  by  reference  to  the 
ancient  union  of  all  governmental  functions  in  one  as- 
sembly. It  is  thus  that  we  account  for  the  existence 
of  the  judicial  business  in  the  House  of  Lords  and  the 
Privy  Council.  Both  of  those  bodies  are  derived  from 
the  ancient  assembly,  the  Wetan,  and  later  the  Commune 
Concilium^  in  which  subsisted  all  governmental  functions. 


CHAPTER  VIII 

THE   CHURCH 

"TN  a  history  of  the  Constitution  of  England  the  Church 
-*-  holds  a  prominent  place;  but  in  the  description  of 
the  Constitution  as  it  exists  to-day  it  may  be  passed  over 
almost  without  notice.  Twenty-six  bishops  of  the  Estab- 
lished Church  are  members  of  the  House  of  Lords,  and 
this  fact  has  something  to  do  with  that  balancing  of 
political  forces  which  conditions  the  working  of  the  Con- 
stitution. But  it  is  not  easy  to  say  just  what  difference 
the  presence  of  the  bishops  makes.  They  are  nearly  all 
Conservatives  in  politics,  as  are  the  other  members  of 
that  House.  If  a  bill  were  introduced  to  exclude  the 
bishops  from  the  House  of  Lords,  the  plea  would  un- 
doubtedly be  urged  by  those  who  opposed  it  that  such 
an  act  is  unconstitutional,  that  by  ancient  custom  the 
bishops  have  a  right  to  the  privilege.  This  is  certainly 
true.  Yet  if  such  an  act  were  to  be  passed  in  the  regu- 
lar constitutional  way,  by  a  majority  in  the  House  of 
Commons,  supported  by  a  majority  of  the  voters  of  the 
nation,  in  whom  the  sovereign  power  of  the  British  gov- 
ernment is  now  held  to  reside,  the  Constitution  would  be 
thereby  changed,  or,  as  Americans  would  say,  amended, 
and  the  ancient,  constitutional  right  of  the  bishops  to 
sit  in  the  House  of  Lords  would  become  unconstitutional 
and  void. 

103 


104  NATURE   OF  THE  ENGLISH  CONSTITUTION    chap,  vm 

England  is  divided  into  ecclesiastical  parishes ;  ^  and, 
according  to  the  ancient  legal  theory  of  the  Constitution, 
all  baptized  persons  who  live  in  a  parish  or  extra-parochial 
liberty  are  members  of  the  Church.  As  one  consequence 
of  this  theory  the  qualified  voters  of  the  parish  have  still 
a  share  in  the  election  of  Church  wardens,  part  of  whose 
duties  are  ecclesiastical.  The  time  was  when  all  the  people 
were  subject  to  the  rule  of  the  one  Church;  when  Church 
officers  and  Church  courts  attended  to  a  large  share  of 
the  business  now  transacted  by  the  civil  authorities.  As 
late  as  1857  the  Archbishop's  Court  had  jurisdiction  in 
questions  of  marriage  and  divorce.  By  act  of  Parliament 
this  business  was  afterwards  transferred  to  the  civil  courts. 
The  Established  Church  still  maintains  its  ancient  forms 
for  legislation,  and  still  has  a  system  of  Church  Courts ; 
but  these  governmental  agencies  are  now  chiefly  exercised 
on  behalf,  not  of  the  entire  population,  but  simply  of  those 
who  profess  membership  in  the  state  Church.  Practically 
they  deal  only  with  the  clergy.  A  dissenting  church  in 
England  adopts  its  own  form  of  church  government  and 
discipline,  and  if  it  does  not  infringe  upon  any  civil  right, 
it  may  do  anything  it  pleases  with  its  own  members. 
The  Established  Church  cannot  do  this.  The  legislative 
bodies  of  the  Established  Church  must  secure  for  their 
acts  the  ratification  of  Parliament  before  they  can  be  made 
effective  in  matters  of  discipline.  Parliament  has,  how- 
ever, by  special  acts,  given  to  the  Established  Church  almost 
the  same  powers  of  discipline  which  dissenting  churches 
enjoy.  These  disciplinary  powers  are  enforced  by  legally 
established  Church  courts  with  an  appeal  from  the  Arch- 
bishop's Court  to  the  Queen  in  Council;  that  is,  the  judicial 
committee  of  the  Privy  Council.  These  courts  being  legal, 
disregard  of  their  orders  may  be  punished  by  imprison- 

1  There  are  certain  districts  outside  of  any  parish,  called  extra-paro- 
chial liberties,  such  as  Westminster  Abbey  and  Lincoln's  Inn. 


CHAP.  VIII  THE   CHURCH  105 

merit.  While  a  court  in  a  dissenting  church  cannot 
punish  for  contempt,  the  same  practical  result  may  yet 
be  secured  by  taking  the  case  into  an  ordinary  court,  and 
if  the  church  is  found  to  be  within  the  law,  the  court  will 
enforce  its  act  of  discipline  on  the  ground  of  a  contract 
between  its  members  to  abide  by  the  rules  duly  authorized. 

This  ancient  organization,  which  at  times  has  been  a 
dominant  factor  in  the  English  government,  is  thus  seen 
to  be  in  many  respects  scarcely  distinguishable  from  other 
religious  bodies  having  no  connection  with  the  govern- 
ment. The  Established  Church  could  be  disestablished 
without  the  knowledge  of  the  ordinary  citizen,  if  it  were 
not  for  the  existence  of  Church  property.  The  dissenting 
bodies,  on  the  one  side,  claim  that  a  large  part  of  the 
property  now  in  the  hands  of  the  Established  Church 
belongs  of  right  to  the  nation  at  large.  The  members  of 
the  state  Church,  on  the  other  side,  claim  a  right  to  all 
the  property  now  used  for  its  support.  This  is,  in  the 
main,  a  legal  and  a  political  question  based  upon  a  variety 
of  facts  in  past  history,  and  such  a  question  cannot  fail  to 
disturb  the  practical  working  of  the  Constitution.  One 
political  party  tends  to  support  the  policy  of  disestab- 
lishment, the  other  favours  the  view  of  the  Established 
Church.  The  Church  thus  becomes  a  considerable  factor 
in  politics. 

In  America,  if  the  government  should  propose  to  take 
property  from  a  church  or  an  individual,  there  would 
instantly  be  raised  the  constitutional  objection  that  pri- 
vate property  cannot  be  taken  for  other  than  a  public 
use,  and  that  it  cannot  be  taken  for  a  public  use  without 
just  compensation.  In  America,  then,  if  ownership  were 
legally  established,  the  Constitution  would  secure  to  the 
Church  all  its  property,  or,  at  least,  just  compensation 
for  any  property  taken.  Now  there  is  undoubtedly  in 
England  a  widespread  feeling,  or  understanding,  that  the 


106         NATURE  OF  THE  ENGLISH  CONSTITUTION    chap,  viit 

right  of  property  is  sacred  and  inviolable.  There  are 
those  who  even  regard  this  feeling,  or  understanding,  as 
a  part  of  the  English  Constitution;  but  this  feeling,  or 
understanding,  cannot  prevent  Parliament  from  taking 
from  the  Church  the  property  which  it  claims  as  its  own, 
if  Parliament  and  the  nation  should  so  will. 


CHAPTER  IX 

SOURCES   OF   THE   CONSTITUTION 

nnO  sum  up  the  foregoing  chapters:  The  English  Con- 
-^  stitution  is  a  body  of  rules  and  understandings  more 
or  less  clearly  defined,  in  accordance  with  which  the  vari- 
ous governmental  agencies  are  kept  in  harmonious  action. 
The  greater  part  of  these  are  not  laws  at  all,  but  are  mere 
understandings  based  upon  custom,  or  growing  out  of  the 
necessities  of  government.  Yet,  if  we  apply  the  American 
analogy  to  the  English  Constitution,  we  find  that  a  part 
of  it  is  actual  law.  In  the  chapter  on  the  courts  the  fact 
has  been  pointed  out  that  some  of  the  most  important  rules 
of  the  Constitution  have  had  a  judicial  origin.  The  rule 
that  the  Monarch  can  do  no  wrong,  or  that  the  King  can- 
not be  accused  in  a  court  of  law,  is  a  rule  of  the  courts. 
Likewise,  the  rule  that  the  official  acts  of  the  King  must 
be  done  through  a  Minister  who  is  legally  responsible  for 
them,  was  made  by  the  courts.  So  also  was  the  rule  that 
all  officers,  military  and  civil,  may  be  punished  in  the  ordi- 
nary courts  for  violating  the  law.  In  this  way  the  Ex- 
ecutive is  constantly  checked  by  the  courts  of  law.  In 
America,  for  example,  we  secure  the  right  of  petition,  the 
right  to  freedom  of  speech,  the  right  of  public  meetings, 
the  right  to  bear  arms,  the  right  of  trial  by  jury,  by 
clauses  which  we  have  inserted  in  our  state  and  United 
States  constitutions.  In  England  these  rights  are  secured 
mainly  by  the  rulings  of  courts. 

107 


108  NATURE   OF  THE  ENGLISH  CONSTITUTION    chap,  ix 

It  will  be  observed  that  these  rules  are  not  mere  under- 
standings ;  they  are  laws,  and  laws  enforced  by  the  courts. 
That  is,  they  are  a  part  of  the  common  law.  Again,  a 
part  of  what  we  should  call  constitutional  law  is,  in  Eng- 
land, enacted  by  Parliament.  Certainly,  a  statute  which 
declares  the  throne  vacant  and  then  proceeds  to  provide 
for  the  filling  of  it  in  a  certain  way  would,  according  to 
American  analogy,  be  a  part  of  the  Constitution.  We 
enjoy  the  benefits  of  the  writ  of  habeas  corpus  by  virtue 
of  provisions  in  our  constitutions.  In  England  the  same 
right  is  secured  by  a  statute.  Besides  Magna  Charta,  the 
Petition  of  Right,  the  Habeas  Corpus  Act,  and  the  Bill  of 
Rights,  there  are  many  other  acts  of  the  English  Parlia- 
ment which,  with  us,  hold  a  place  in  our  written  consti- 
tutions. 

This  analysis  gives  us  three  distinct  sources  of  consti- 
tutional rules.  There  are,  first,  understandings  which 
are  not  recognized  as  laws;  second,  rules  of  common  law 
made  by  the  courts  and  enforced  by  them;  and  third, 
acts  of  Parliament.  It  is  nevertheless  true  that  no  part 
of  the  English  Constitution  has  been  constructed  by  a  de- 
liberate act  of  constitution-making  in  the  American  sense. 
Neither  the  courts  nor  Parliament  ever  sat  down  to  con- 
struct a  fundamental  law  which  has  for  its  object  the  dis- 
tribution of  powers  and  the  securing  of  their  harmonious 
exercise.  It  is  doubtful  whether  the  English  themselves 
would  ever  have  thought  of  calling  these  rulings  of  courts, 
and  these  statutes,  a  part  of  their  Constitution,  except  for 
the  American  analogy.  I  am  unable  to  find  a  word  in 
Blackstone  to  suggest  the  notion  that  there  was  such  a 
thing  as  constitutional  law.  To  his  mind  the  contents  of 
the  Constitution  were  the  understandings  by  which  the 
high  powers  of  state  were  balanced  and  kept  in  harmony. 
But  for  the  American  analogy,  the  Constitution  would 
probably  have  remained  distinct  from  the  law  and  en- 


CHAP.  IX  SOURCES  OF  THE   CONSTITUTION  109 

tirely  made  up  of  the  unwritten  and  the  extra-legal  parts. 
According  to  this  definition,  there  would  be  a  sort  of 
perpetual  warfare  between  the  Constitution  and  the  law. 
One  or  another  of  these  understandings  of  the  Constitu- 
tion would  tend  to  encroach  upon  some  law.  As  a  result 
of  this  a  contest  would  arise.  In  course  of  time,  the  con- 
test would  be  settled  by  a  new  law  or  a  more  perfect 
understanding.  If  by  a  new  law,  then  that  which  was 
Constitution  before  would  cease  to  be  regarded  as  a  part 
of  the  Constitution  and  would  become  a  law.  In  the 
nature  of  the  case,  therefore,  the  understandings  of  the 
Constitution  are  preeminently  the  contentious  part  of 
the  government. 

The  chief  object  of  a  constitution  is  to  prevent  the 
encroachment  of  the  several  departments  upon  each  other 
and  to  secure  harmonious  action.  If  there  is  no  ten- 
dency in  one  governmental  agency  to  encroach  upon 
another,  if  there  is  no  contention,  then  what  use  for  the 
word?  In  these  constitutional  contentions  the  claim  is 
always  made  that  some  proposed  action  is  in  violation 
of  the  Constitution.  It  is  assumed  in  opposition  to  the 
measure  that  the  Constitution  is  inviolable  and  unchange- 
able. If,  however,  in  the  face  of  such  a  contention  the 
measure  is  adopted  and  a  new  policy  is  inaugurated,  a 
change  is  thus  effected  in  the  Constitution. 

Previous  to  1832  the  House  of  Lords  claimed  to  be  an 
equal  and  coordinate  branch  of  the  legislature.  The 
Lords  first  met  the  proposition  to  force  them  to  pass  the 
Reform  Bill  with  the  plea  that  such  an  act  would  be  a 
flagrant  violation  of  the  Constitution.  The  Duke  of 
Wellington,  himself,  who,  a  few  years  later,  took  a  lead- 
ing part  in  persuading  the  Lords  to  accept  an  inferior 
place  in  the  government,  was  at  first  strong  in  the  expres- 
sion of  his  conviction  that  the  proposition  to  deprive  them 
of  equal  and  coordinate  power  was  a  violation  of  the  Con- 


no  NATURE   OF  THE   ENGLISH  CONSTITUTION    chap,  ix 

stitution.  But  the  Lords  were  forced  to  pass  the  bill  by 
the  threat  of  the  Executive  to  create  new  Lords  and  thus 
insure  its  passage.  This  act  gave  rise  to  a  new  and  im- 
portant understanding  which  it  took  a  good  many  years 
thoroughly  to  settle ;  and  so  long  as  it  was  unsettled  it 
was  an  object  of  frequent  contention.  It  has  now  become 
an  unchangeable  and  inviolable  part  of  the  Constitution, 
and  it  would  long  ago  have  ceased  to  be  thought  of  as 
having  any  special  constitutional  importance  if  it  had  not 
recently  been  made  the  basis  of  new  contentions.  Since 
the  Lords  must  yield  to  the  Commons,  the  question  arises, 
When  must  they  yield?  How  shall  they  know  when  to 
yield  ?  If  they  accept  a  bill  in  the  main,  may  they  not 
introduce  some  changes  ?  These  are  questions  about 
which  there  is  still  contention  ;  and  so  long  as  such  con- 
tentions exist,  that  part  of  the  Constitution  which  requires 
the  Lords  to  yield  to  the  Commons  will  continue  to  be  of 
special  interest. 

That  part  of  the  English  law,  either  common  law  or 
statute,  which  is  for  the  time  being  in  conflict  with  one  of 
the  understandings  upon  which  the  stability  of  the  govern- 
ment depends,  is  of  constitutional  importance  because  of 
the  conflict.  The  perfection  of  the  Constitution  will  have 
been  reached  when  all  such  contention  shall  cease.  When 
the  rights,  privileges,  and  immunities  of  all  classes  of  the 
people  shall  have  been  determined;  when  the  exact  posi- 
tion of  the  House  of  Lords  and  that  of  the  Crown  shall 
have  been  defined,  and  the  ultimate  form  of  the  legislature 
shall  have  been  determined  ;  when  the  courts  shall  know 
their  place,  and  all  disputes  be  settled  as  to  the  relations 
of  legislative  and  executive  agencies,  —  when  these  and 
all  other  similar  questions  shall  be  settled,  then  the  term 
"Constitution"  will  have  a  new  meaning  in  England,  or 
at  least  an  ancient  meaning  of  the  word  will  cease  to  exist. 

We  read  that  the  Constitution  of  England  has  remained 


CHAP.  IX  SOURCES  OF  THE   CONSTITUTION  111 

without  essential  change  for  more  than  a  thousand  years. 
The  Danes  came,  but  they  ruled  according  to  the  English 
Constitution.  Even  the  Normans  did  not  displace  the 
English  Constitution.  The  revolution  of  1688  was  simply 
a  device  for  perpetuating  the  ancient  English  Constitu- 
tion. It  is  not  possible  to  give  a  precise  meaning  to  the 
term  as  used  in  such  expressions,  but  a  sufficient  reason 
for  the  phraseology  may  be  found  in  the  fact  that  there 
has  not  been  a  time  when  the  form  of  the  government 
was  not  in  large  part  determined  by  previous  history. 
At  every  point  there  has  been  a  conscious  reference  to 
the  past. 

At  all  times  large  classes  of  citizens  have  been  recog- 
nized as  being  in  possession  of  privileges  which  could 
not  be  taken  from  them.  If  a  particular  privilege  was 
removed  for  a  time,  the  memory  of  it  remained,  and  in 
course  of  time  the  privilege  was  often  recovered.  It  is 
only  in  comparatively  recent  times  that  the  term  ''  Consti- 
tution "  has  been  used  to  express  the  means  whereby  an- 
cient rights  have  been  preserved  and  transmitted.  It  will 
be  observed  that  it  is  this  use  of  the  term  which  has  given 
rise  to  the  idea  that  the  Constitution  is  unchangeable, 
sacred,  and  inviolable.  Whether  the  Constitution  is  really 
unchanging  is  a  mere  matter  of  definition.  If  we  give  a 
definition  which  is  sufficiently  indefinite,  we  can  say  with 
much  confidence,  "  The  Constitution  of  England  under 
Queen  Victoria  is,  indeed;  the  very  Constitution  under 
which  the  Confessor  ruled  and  which  the  Conqueror 
swore  to  obey."^  All  that  is  true  in  such  a  statement, 
however,  may  be  found  in  the  words  :  There  are  important 
characteristics  of  the  English  government  which  have 
continued  without  change  from  the  Confessor  to  Victoria. 

Whatever  definition  may  be  given  to  the  English  Con- 
stitution, all  will  agree  that  it  is  an  outgrowth  of  English 
1  Heam,  The  Government  of  England^  p.  4. 


112  NATURE  OF  THE  ENGLISH  CONSTITUTION    chap,  ix 

history,  and  in  a  sense  in  which  the  American  Constitution 
is  not  an  outgrowth  of  history.  If  our  forefathers,  when 
they  assumed  independence,  had  not  adopted  any  written 
constitutions  for  the  government  of  their  states,  but  had 
succeeded  in  governing  themselves  by  self-control,  by 
habits,  by  customs,  and  by  mutual  understandings ;  and 
if,  when  they  felt  the  need  of  a  general  government,  they 
had  formed  one  in  the  same  way,  we  can  see  that  such  a 
government  would  have  been  dependent  upon  its  ordinary 
history  for  harmony  of  action  in  a  way  in  which  govern- 
ments by  written  constitutions  are  not  dependent.  In 
that  case  the  agencies  by  which  encroachments  are  pre- 
vented and  by  which  harmony  of  action  is  secured  would 
be  derived  from  our  history.  There  would  have  been 
governors,  not  because  state  constitutions  provided  for 
their  existence,  but  because  experience  and  the  necessities 
of  the  case  led  to  their  use.  There  would  have  arisen 
a  President  or  a  corresponding  officer,  in  the  same  way. 
It  is  quite  natural  for  an  American  to  say  that  such  a 
supposition  is  absurd  and  that  the  thing  is  impossible. 
Yet  this  is  exactly  what  the  English  have  always  been 
doing. 

The  Americans,  at  a  certain  time,  in  a  certain  way, 
addressed  themselves  to  the  task  of  making  constitutions. 
First,  each  of  the  thirteen  states  framed  or  adopted  a 
written  document  which  they  called  a  State  Constitution, 
some  of  them  accepting  as  such  the  royal  charters  which 
had  previously  been  in  force.  A  little  later,  the  people, 
by  means  of  a  constitutional  convention,  framed  a  Con- 
stitution for  the  general  government.  These  documents 
are  a  part  of  our  written  laws.  To  the  courts  are  given 
the  power  and  the  duty  of  interpreting  and  applying  these 
laws  which  we  call  Constitutions.  Our  real  Constitution 
which  is  in  force  to-day  is  made  up  of  what  the  courts 
and  other  officers  have  held  to  be  the  meaning  of  the 


CHAP.  IX  SOURCES  OF  THE    CONSTITUTION  113 

written  documents.  An  instructed  American  would  not 
say  that  the  Constitution  which  Washington  swore  to  sup- 
port is  the  very  Constitution  which  Mr.  Cleveland  is  now 
endeavouring  to  maintain.  He  knows  that  important 
changes  have  been  made  by  the  formal  act  of  amending ; 
and  a  well-informed  American  knows  that  much  more 
important  changes  have  been  effected  by  official  acts  of 
interpretation  and  application.  The  American  Constitu- 
tion grows  by  amendments ;  but  it  grows  much  more  by 
official,  and  especially  by  judicial,  interpretations.  A 
history  of  the  American  Constitution  is  a  history  of  the 
legislative,  executive,  and  judicial  interpretations  of  the 
written  documents.  Our  constitutional  literature  takes 
the  form  of  a  commentary  on,  or  an  exposition  of,  the 
written  documents.  Literature  on  the  English  Consti- 
tution takes  the  form  of  a  description  of  the  leading  gov- 
ernmental agencies  and  their  relations  to  each  other,  and 
an  historical  account  of  the  manner  in  which  the  gov- 
ernment came  to  be  what  it  is.  The  American  Consti- 
tution is  that  which  has  been  read  out  of,  or  read  into, 
certain  written  documents.  The  English  Constitution  is 
that  which  has  been  read  out  of,  or  read  into,  certain 
events  in  English  history.  In  the  place  of  an  exposition 
of  certain  documents  there  is  a  peculiar  reading  of  certain 
parts  of  English  history. 


i 


Part  II 

THE  GROWTH  OF  THE  CONSTITUTION 


CHAPTER  X 

SOURCES   OF    POWER    AND    INFLUENCE    EST   THE    NORMAN 

PERIOD 

rjlHE  Norman  Conquest  furnishes  a  convenient  starting- 
-^  point  for  the  study  of  the  early  English  government. 
It  should  be  noticed,  in  the  first  place,  that  the  word 
"constitution"  was  not  then  in  use  and  that  the  idea 
now  usually  expressed  by  it  was  not  current.  There  was 
a  Ring  having  more  or  less  clearly  understood  functions ; 
there  was  a  body  of  noblemen  holding  certain  relations 
to  the  King  and  exercising  a  good  deal  of  influence  over 
him ;  there  was  a  body  of  clergymen  having  a  share  in  the 
government ;  there  were  the  common  people  accustomed  to 
certain  ways  of  living.  But  none  of  these  classes  thought 
of  themselves  as  living  under  a  constitution  which  guar- 
anteed to  them  clearly  defined  rights,  privileges,  and 
powers.  Each  individual  claimed  his  right  or  his  privi- 
lege because  he  had  won  it  with  his  sword,  or  because  his 
father  had  enjoyed  it  before  him,  or  because  he  had  re- 
ceived it  from  a  superior  who  had  inherited  it,  or  won 
it  by  the  sword,  or  simply  because  he  wanted  it.  As  it 
was  with  the  individual  so  it  was  with  each  class.  Not 
until  the  century  of  the  American  Revolution  were  Eng- 
lishmen generally  conscious  of  the  possession  of  a  consti- 
tution securing  to  them  important  rights  and  privileges. 
It  is,  however,  an  easy. matter  to  find  among  the  institu- 
tions of  the  Norman  kings  that  which  corresponds  exter- 

117 


118  GROWTH   OF   THE   ENGLISH   CONSTITUTION      chap,  x 

nally  to  the  various  parts  of  the  English  government  of 
to-day.  For  example,  the  Crown  represents  the  Crown 
of  to-day ;  in  the  place  of  the  House  of  Lords  there  was 
an  ill-defined  body  of  prelates  and  great  lords  who  had 
a  share  in  the  King's  government.  There  was  no  House 
of  Commons,  it  is  true,  made  up,  as  in  later  times,  of 
representatives  from  towns  and  counties  ;  but  in  every 
county  there  was  a  county  court  through  whose  agency 
money  was  secured  for  the  King's  government ;  and  there 
were  various  towns  and  cities  from  which  money  was 
received  for  the  King.  These  local  governments  per- 
formed in  some  respects  the  functions  assumed  in  after 
ages  by  the  House  of  Commons.  In  the  place  of  the 
modern  Ministry  were  certain  hereditary  officers  and 
others  chosen  by  the  King  as  his  assistants.  Besides,  the 
Church  then  held  a  high  position  in  power  and  influence. 
It  had  its  own  laws  and  its  own  courts,  and  controlled 
much  of  the  soil.  But  while  these  various  parts  of  the 
government  existed,  what  we  now  understand  as  the  con- 
stitutional relations  of  each  to  the  others  did  not  then 
exist.  The  English  Constitution  of  to-day  is  based  upon 
the  will  of  the  nation  as  expressed  through  the  House 
of  Commons ;  but  such  a  constitution  would  have  been 
wholly  unintelligible  to  the  men  of  those  early  times. 

During  the  Norman  period  the  Crown  overshadowed 
every  other  governmental  institution.  It  had  come  into 
being  during  the  centuries  preceding  the  Conquest  in 
connection  with  continued  wars.  The  Germanic  tribes 
were  for  generations  occupied  in  driving  native  Britons, 
or  Welshmen,  to  the  west  side  of  the  island.  Then  the 
petty  chiefs  or  kings  contended  for  centuries  against  each 
other  for  supremacy.  For  two  hundred  years  a  more  or 
less  united  England  had  resisted  the  invasions  of  the 
Danes  from  the  east;  yet  early  in  the  century  of  the  Con- 
quest, England  had  submitted  to  the  rule  of  a  Danish 


CHAP.  X  THE  NORMAN  PERIOD  119 

king.  Later,  the  English  had  been  again  united  for  a 
time  under  their  own  Edward  the  Confessor.  The  neces- 
sities of  war  and  the  conscious  need  of  a  strong  hand  to 
preserve  order  had  served  to  strengthen  the  Crown.  The 
brief  intervals  during  those  centuries  of  violence  in  which 
the  people  generally  enjoyed  the  blessings  of  peace  and 
order,  had  left  in  their  minds  a  memory  of  the  good  laws 
of  the  good  kings.  The  blessings  of  the  past  came  to  be 
associated  with  certain  good  kings  (as  the  great  Alfred), 
and  this  served  to  strengthen  the  position  of  any  king. 
Canute,  the  Danish  king,  sought  to  win  the  affections  of 
the  people  and  to  rule  as  an  English  monarch.  The 
Conqueror  claimed  the  Crown  as  the  heir  of  Edward  the 
Confessor,  and  sought  every  advantage  which  belonged  of 
right  to  an  English  king. 

It  was  because  the  Conqueror  was  not  allowed  to  come 
peaceably  into  the  possession  of  the  English  Crown,  that 
he  came  with  an  army  of  Normans.  As  soon  as  the 
opposing  army  was  vanquished,  and  his  rival  slain,  he 
was  crowned  according  to  English  custom,  and  thus  came 
into  possession  of  the  usual  powers  of  the  English  sover- 
eigns. He  was,  hence,  enabled  to  reap  many  of  the 
advantages  flowing  from  the  prejudices  of  the  English 
people  in  favour  of  their  own  kings.  William  also  enjoyed 
some  advantages  from  the  fact  that  he  was  a  conqueror. 
A  large  portion  of  the  English  lords  championed  the  cause 
of  Harold  and  participated  in  the  rebellions  which  arose 
against  William  in  the  early  years  of  his  reign.  This 
furnished  the  latter  with  a  pretext  for  confiscating  a  large 
part  of  the  lands  of  the  realm,  which  he  distributed  to  his 
Norman  soldiers  in  a  way  which  tended  to  strengthen  his 
military  power. ^ 

Great  as  was  the  power  of  the  King,  he  was  neverthe- 
less conditioned  in  his  action  by  the  existence  of  influ- 
1  Freeman,  Norman  Conquest,  Vol.  IV. ,  p.  22  et  seq. 


120  GROWTH  OF  THE   ENGLISH  CONSTITUTION     chap,  x 

ential  classes.  On  the  Continent  kings  were  at  that  time 
comparatively  weak,  owing  to  the  restraining  influence 
of  the  feudal  system.  Effective  power  was  vested  in  the 
lords  and  their  immediate  followers.  Kings  of  France 
had  power  only  as  they  were  feudal  lords,  with  tenants 
bound  to  them  by  feudal  law.  When  the  Normans  came 
into  England,  the  feudal  system  had  not  there  gained  the 
footing  which  it  had  in  France.  English  kings  had  suc- 
ceeded in  retaining  a  large  measure  of  power.  William 
kept  for  himself  all  the  power  which  belonged  to  an 
English  king,  while  he  also  took  care  that  feudal  lords 
should  not  gain  power  in  England  as  they  had  done  in 
France.  In  the  first  place,  he  abolished  the  great  earl- 
doms of  the  Saxon  period,  so  that  the  feudal  lords  should 
not  have  leaders  who  could  conveniently  muster  their 
forces  and  make  war  upon  the  King.  Next,  in  giving 
out  the  land  to  his  earls  and  barons  he  saw  to  it  that 
the  estates  of  each  should  be  so  distributed  in  different 
parts  of  the  country  that  it  would  be  inconvenient  for  him 
to  collect  his  forces.  In  this  way  the  King  had  in  all 
parts  of  the  country  Norman  forces  which  could  be  relied 
upon  to  put  down  a  rising  of  the  English  people,  while  at 
the  same  time  it  was  not  easy  for  this  Norman  feudal  body 
to  gather  a  hostile  army  against  the  King.  Again,  the 
King  saw  to  it  that  those  who  received  lands  from  a  lord, 
and  took  the  oath  of  allegiance  to  him,  should  recognize 
superior  allegiance  to  the  King.^  Finally,  in  a  great 
meeting  of  feudal  lords  at  Salisbury,  "a  statute  was 
passed  that  every  freeman  in  the  realm  should  take  the 
oath  of  fealty  to  King  William."  ^     In  these  and  other 

1  Stubbs,  8elect  Charters^  p.  80. 

2  Freeman,  Norman  Conquest,  Vol.  IV.,  p.  472.  See  the  subject  fully- 
treated  by  Stubbs,  Constitutional  History  of  England,  Vol.  I.,  Chaps. 
IX.  and  XI.  Freeman,  Norman  Conquest,  IV.,  p.  471  et  seq.,  and  V., 
p.  257.    Green,  History  of  the  English  People,  Vol.  I.,  Book  II.,  Chap.  I. 


CHAP.  X  THE  NORMAN  PERIOD  121 

ways  the  King  curbed  the  power  of  the  lords,  while  he 
did  not  destroy  it ;  it  was  still  possible  for  them  to  make 
war  upon  him.  These  Norman  lords  were  acquainted 
with  the  feudal  system  as  it  existed  in  France,  and  were 
at  all  times  disposed  to  assert  their  power  and  to  resist 
the  hand  of  their  royal  master.  A  weak  king  would 
have  been  powerless  to  restrain  them.  It  was,  therefore, 
fortunate  for  the  Crown  that  the  first  three  kings  were 
men  of  unusual  ability.  As  soon  as  a  weak  king  did 
appear,  in  the  person  of  Stephen,  the  power  of  the  feudal 
lords  ran  riot  in  the  land.  Yet  all  the  while  the  con- 
sciousness of  the  existence  of  this  jealous  feudal  nobility 
constantly  conditioned  the  action  of  the  King. 

The  power  of  the  Crown  was  still  farther  modified  by 
the  Church.  Centuries  before  the  Conquest  a  national 
Church  had  been  established  in  England.  There  was  a 
united  Church  before  there  was  a  united  kingdom.  In- 
deed, the  national  Church  did  much  to  prepare  the  way 
for  national  government.  The  clergy,  being  the  only 
educated  class,  became  the  ministers  of  the  early  kings ; 
and  because  there  was  a  system  of  canon,  or  Church,  laws 
for  all  England,  administered  by  the  clergy  in  all  parts  of 
the  land,  it  seemed  the  more  natural  that  all  the  laws  of 
common  concern  should  have  the  same  uniform  authority 
and  uniform  administration.  When  the  Conquerer  came, 
the  Church  and  the  State  had  been  already,  in  a  measure, 
fused  into  one  government.  Bishops  and  other  high 
Church  dignitaries  sat  with  King  and  Wise  Men  as  they 
deliberated  on  all  matters  sacred  and  secular.  The  local 
bishop  sat  with  the  ealdorman  and  the  sheriff  in  the 
county  court,  and  together  they  transacted  business  both 
sacred  and  secular.^  The  clergy  had  likewise  a  share  in 
the  courts  of  the  hundred. 

William  resolved  to  separate  the  clergy  from  the  secu- 
1  Stubbs,  Constitutional  History  of  England,  Vol.  I.,  p.  113. 


122  GROWTH  OF  THE  ENGLISH  CONSTITUTION     chap,  x 

lar  government.  A  system  of  independent  Church  courts 
was,  therefore,  set  up,  which  were  empowered  to  punish 
violations  of  the  sacred  or  canon  laws ;  yet  William  took 
care  that  his  own  tenants,  or  the  earls  and  barons  who 
held  lands  directly  from  him,  should  not  be  punished  in  a 
Church  court  without  his  consent.  Moreover,  he  did  not 
allow  a  Church  officer  to  receive  either  the  Pope's  legate, 
or  letters  from  the  Pope  without  his  consent ;  ^  and  he  did 
not  allow  the  assembly  of  the  clergy  to  adopt  any  rules 
which  had  not  received  his  approval.  William  intended 
that  this  separate  Church  government  should  be  kept 
in  such  subjection  to  his  personal  will  that  it  should 
strengthen  the  power  of  the  Crown.  Yet  the  fact  that 
such  a  clerical  power  existed  was  always  a  source  of 
influence  upon  the  action  of  the  kings. 

The  fourth  source  of  power  and  influence  in  the  gov- 
ernment is  by  no  means  so  easily  described.  Historians 
by  general  agreement  attribute  to  the  English  people  the 
determining  forces  of  the  English  Constitution.  More 
than  the  King,  more  than  the  nobility,  more  than  the 
Church,  the  English  people  are  the  source  of  the  Eng- 
lish Constitution.  But  how  could  a  people  who  were 
doubly  enslaved  give  to  a  country  a  free  constitution  ? 
The  relation  of  the  people  to  the  Constitution  may 
perhaps  be  illustrated  by  an  example  drawn  from  a 
line  of  experience  far  removed  from  that  under  consid- 
eration. 

A  noted  American  hunter  and  buffalo-tamer  has  found 
that  his  powers  are  sharply  limited  in  his  dealing  with  the 
wild  buffalo.  If  he  takes  an  animal  that  has  passed  the 
age  of  six  months,  the  animal  dies  in  a  few  days.  On 
the  side  of  force  his  power  over  the  buffalo  is  practically 
without  limit;  but  if  he  wants  to  have  the  animal  live 
and  thrive,  he  must  respect  its  nature. 

1  Stubbs,  Constitutional  History  of  England,  Vol.  I.,  p.  285. 


CHAP.  X  THE  NORMAN  PERIOD  128 

Now  the  ancestors  of  the  English  had  certain  social 
habits  which  they  could  not  be  induced  to  change  sud- 
denly. They  could  be  conquered  and  could  be  induced  to 
accept  a  lord  and  master,  but  if  they  went  on  living  at  all, 
they  must  act  a§  they  had  been  wont  to  act.  Only  the 
lord  who  had  respect  to  the  local  habits  of  his  servants 
was  enabled  to  maintain  his  place  against  his  rivals.  The 
English  were  powerful  in  servitude,  while  within  certain 
limits  they  had  their  own  way.  It  seems  reasonable  to 
believe  that  the  English  were  somewhat  peculiar  in  the 
intensity  with  which  they  clung  to  their  ancient  customs, 
but  there  is  no  reason  to  believe  that  this  arose  from  supe- 
rior intelligence,  or  from  a  higher  sense  of  the  value  of  lib- 
erty. More  probably  it  arose  from  a  blind,  unreasoning 
instinct.  The  English  were  apparently  more  stupid  than 
the  Gauls.  We,  no  doubt,  owe  more  than  we  should  like 
to  confess  to  the  downright  stupidity  of  our  ancestors. 
They  could  be  easily  induced  to  believe  all  manner  of 
errors  about  themselves;  but  they  could  not  readily  be 
taught  to  act  in  a  new  way.  But  while  stupidity  may 
account  for  much,  it  does  not  account  for  everything. 
There  is  a  considerable  amount  of  evidence  that  the  early 
English  possessed  a  faculty  much  resembling  a  long  mem- 
ory. When  they  had  been  led  to  deviate  in  any  respect 
from  the  old  way,  they  afterwards  showed  a  strong  dis- 
position to  revert  to  the  former  customs. 

When  the  Normans  came,  the  English  people  had  been 
subject  for  generations  to  the  rule  of  kings  and  lords  and 
priests ;  yet  a  large  proportion  of  the  people  who  were 
neither  kings,  lords,  nor  priests  were  accustomed  to  have 
a  part  in  local  government.  There  were  courts  on  the 
lords'  estates  in  which  the  tenantry  had  a  share. ^  Much 
of  the  government  was  in  the  hands  of  county  courts  and 
the  courts  held  in  the  hundreds,  in  which  many  of  the 
1  Medley,  English  Constitutional  History^  p.  315. 


124  GROWTH  OF  THE  ENGLISH  CONSTITUTION     chap,  x 

people  had  a  share. ^  Then  there  were  towns  and  cities 
in  which  citizens  were  accustomed  to  exercise  important 
powers  of  local  government. 

When  we  discuss  to-day  that  balancing  of  forces  which 
conditions  the  action  of  sovereign  power,  we  may  take  little 
note  of  local  government.  No  important  constitutional 
question  is  now  involved  in  local  government.  But  in  a 
study  of  the  time  of  William  the  Conqueror,  the  local 
governments  of  England  cannot  properly  be  omitted  from 
the  list  of  forces  which  modified  the  exercise  of  the 
highest  powers  of  government.  William  could  not  have 
destroyed  these  local  governments  without  weakening  or 
destroying  his  own  government.  They  were  the  chief 
means  of  keeping  in  check  the  power  of  his  barons,  which 
was  the  force  then  most  dangerous  to  the  Crown ;  and 
he  wisely  determined  to  use  them. 

Thus,  the  four  chief  sources  of  power  and  influence  in 
the  government  of  the  Norman  period  may  be  briefly 
described  as :  first,  the  Crown ;  second,  the  Nobility ; 
third,  the  Church ;  fourth,  the  People.  But  the  subject 
is  by  no  means  so  simple  as  this  analysis  might  seem  to 
indicate.  Each  of  the  four  parts  is  complex  and  often 
eludes  accurate  analysis.  The  most  definite  of  the  four  is 
the  Crown.  The  word  represents  an  office  filled  in  a  cer- 
tain way ;  and  at  each  particular  date  the  office  is  under- 
stood to  stand  for  certain  more  or  less  definite  powers 
and  duties.  Much  of  the  constitutional  history  of  Eng- 
land hinges  upon  the  contention  as  to  who  has  a  right  to 
fill  this  office.  William  was  king,  because  he  wanted  the 
office,  and  because  he  had  the  power  to  take  it  and  keep 
it.  The  same  is  true  of  the  four  kings  who  followed  him. 
Each  individual  king  found  it  to  his  advantage  to  assume 
that  certain  clearly  defined  duties  and  privileges  belonged 

1  Medley,  English  Constitutional  History^  p.  296.  Stubbs,  ConstitU' 
Uonal  History  of  England,  Vol.  I.,  p.  102. 


CHAP.  X  THE  NORMAN  PERIOD  125 

to  the  office,  but  no  one  except  the  King  and  his  special 
friends  was  accustomed  to  agree  with  him  in  this  matter. 
The  term  "  Crown "  sometimes  designates  the  office,  at 
other  times  it  designates  the  person,  and  it  may  also 
include  the  group  of  noblemen  which  made  up  the 
King's  party;  and  these  meanings  shade  into  each 
other  in  such  a  way  as  to  defy  accurate  analysis.  It 
is,  however,  a  convenient  word,  partly  because  of  its 
indefiniteness. 

The  term  "  Nobility  "  is  still  more  indefinite.  There  was 
never  a  time  in  early  English  history  when  it  was  possible 
to  count  a  definite  number  of  men,  and  say  that  these 
constituted  the  nobility  while  all  others  were  not  noble. 
Under  the  Norman  kings  there  were  earls  and  barons  who 
were  accustomed  to  receive  a  personal  summons  to  the 
royal  council,  while  those  of  lower  rank  were  summoned 
through  the  sheriff  in  the  county  court.  The  barons  of 
William's  reign  were  nearly  all  Normans  who  had  as- 
sisted in  conquering  the  country.  They  had  received 
grants  of  land  from  the  King,  and  had  taken  the  feudal 
oath  to  serve  him,  and  were  therefore  called  tenants-in- 
chief  of  the  King ;  that  is,  they  acknowledged  no  lord  but 
the  King.  Yet  the  King  had  many  other  tenants-in-chief 
who  were  not  earls  or  barons.  Some  of  these  were  Nor- 
mans who  had  received  direct  grants  of  land  from  him, 
and  some  of  them  were  Englishmen  whom  he  had  seen  fit 
to  favour.  The  great  lords  gave  lands  under  feudal  oath 
to  minor  lords,  and  these  to  still  lesser  ones,  until,  at  the 
bottom  of  the  scale,  there  stood  the  simple  free  tenant, 
who  was  not  a  lord,  and  is  not  thought  of  as  belong- 
ing to  the  nobility.  Of  the  lords  who  held  lands  from 
other  lords,  there  were  some  who  were  as  significant, 
who  counted  for  as  much,  in  the  class  of  the  nobility, 
as  some  of  the  lesser  tenants-in-chief  of  the  King.  As 
some  of  the  King's  tenants  were  English,  so  many  of  the 


126  GROWTH  OF  THE  ENGLISH  CONSTITUTION     chap,  x 

military  tenants  of  the  lords  were  English  also.  In  this 
way  many  of  the  older  English  nobility  held  minor  places 
in  the  new  nobility. ^ 

The  term  "  Church  "  is  no  less  indefinite.  The  Church  of 
the  Middle  Ages  claimed  and  exercised  a  large  share  in  the 
government.  It  always  claimed  more,  indeed,  than  the 
kings  would  concede.  The  Church  in  England  was  simply 
a  part  of  the  western  European  Church  with  the  Pope  of 
Rome  at  its  head.  William  had  undertaken  the  conquest 
of  England  with  the  papal  approval.  The  Roman  pontiff 
always  claimed  a  share  in  the  filling  of  Church  offices  and 
demanded  a  portion  of  the  ecclesiastical  revenues.  While 
all  classes  in  England  were  disposed  to  resist  the  encroach- 
ments of  the  Pope,  his  interference  nevertheless  remained 
an  important  factor  in  the  balancing  of  the  high  powers  of 
State.  When,  however,  we  speak  of  the  Church  as  a  factor 
in  the  origin  of  the  Constitution,  it  is  the  national  English 
Church  which  should  be  chiefly  borne  in  mind.  "  The 
King  and  the  Archbishop  are  the  two  oxen  which  draw 
the  English  plough."  That  they  did  not  always  draw  in 
the  same  direction  will  be  seen  further  on  ;  yet,  upon  the 
whole,  the  higher  clergy  were  the  most  effective  sup- 
porters of  royal  power.  The  bishops,  abbots,  and  priors 
who  made  up  the  hierarchy  were  usually  dependent  upon 
the  King  for  their  positions,  and  usually  sided  with  hiin 
in  matters  of  controversy ;  while  the  parish  priests,  the 
monks,  and  the  members  of  religious  houses  were  much 
less  directly  dependent  upon  royal  favour.  It  often  hap- 
pened, even,  that  the  lower  clergy  were  politically  opposed 
to  their  superiors  in  the  Church. '  Hence,  in  forming  an 
estimate  of  the  power  of  the  Church  as  a  part  of  the 
government  of  England  we  are  required  to  consider  sepa- 
rately the  Pope  of  Rome,  the  higher  clergy,  and  the  lower 

1  See  Medley,  English  Constitutional  History,  p.  19  et  seq.,  for  classi- 
fication of  feudal  hierarchy. 


CHAP.  X  THE  NORMAN  PERIOD  127 

clergy.  Between  these  forces  there  was  no  natural  and 
constant  coherence. 

In  America  the  Church  is  regarded  as  simply  a  religious 
society  ;  it  has  no  direct  connection  with  the  government. 
Seeing  that  the  Church  of  the  Middle  Ages  held  and  admin- 
istered large  estates,  and  formed  an  important  part  of  the 
government,  we  may  be  in  danger  of  neglecting  to  give 
due  weight  to  its  teaching  functions.  While  it  is  well  to 
distinguish  between  the  two  offices  of  the  Church,  it  is 
not  well  to  forget  that  both  existed.  The  religious  teach- 
ing of  the  Church  has  had  quite  as  much  to  do  with  the 
origin  of  the  modern  Constitution  as  has  its  government. 
It  was  the  consciousness  of  a  common  religion  that  tended 
most  to  efface  the  distinction  between  Norman  and  Eng- 
lish. In  the  twelfth  century  a  national  religious  revival 
coincided  with  the  preaching  of  the  monks  and  the  found- 
ing of  religious  houses.  In  the  thirteenth  century  came 
the  Friars  and  cast  in  their  lot  with  lepers  and  beggars  on 
the  outskirts  of  the  cities.  These  occurrences  profoundly 
affected  the  religious  sentiment  of  the  nation.  The  chari- 
table feelings  of  men  were  stimulated ;  hospitals  were 
founded ;  and  learning  was  encouraged.  The  revival  of 
religion  and  of  learning  with  which  the  name  of  Wiclif 
is  connected  followed  in  the  fourteenth  century.  Some 
of  the  religious  awakenings  tended  to  the  purification  of 
the  Church,  and  therefore  strengthened  it  even  politically. 
Others,  on  the  contrary,  rather  weakened  the  position  of 
the  Church  as  a  part  of  the  government.  Especially  was 
this  true  of  that  which  followed  the  preaching  of  Wiclif 
and  the  Lollards.  In  later  centuries  diversity  in  religion 
was  a  chief  factor  in  the  formation  of  permanent  political 
parties. 

If  it  is  difficult  to  analyze  and  define  the  Nobility  and 
the  Church,  it  is  much  more  difficult  to  analyze  or  describe 
the  People  as   a   factor   in  the   government  apart  from 


128  GROWTH  OF  THE  ENGLISH  CONSTITUTION     chap,  x 

Nobility  and  Church.  Even  with  the  advanced  demo- 
cratic theories  which  now  prevail  it  is  not  altogether  easy 
to  answer  the  question,  Who  are  the  people  ?  Mr.  Burke 
was  quite  sure  a  hundred  years  ago  that  the  people  were 
not  the  mass  of  men  without  distinction  of  rank,  told  by 
the  head.  The  great  religious  revivals  tended  to  give 
increased  importance  to  the  lowly,  yet,  at  the  same  time, 
the  most  democratic  of  the  religious  teachers  of  the 
Middle  Ages  taught  that  God  bad  set  men  in  society  in 
different  ranks  and  orders.  The  modern  democratic 
notion  was  wholly  wanting.  The  Church  as  a  religious 
institution  included  all  the  people  ;  yet  the  Church  as  a 
part  of  the  government  included  only  the  clergy.  The 
nobility  included  only  a  small  fraction  of  the  people, 
and  a  large  share  of  their  business  consisted  in  war  and 
participation  in  government.  The  clergy  taught  and 
governed ;  the  nobility  defended  and  governed,  and  all 
were  assumed  to  act  in  harmony,  with  the  King  ruling 
over  all. 

During  the  Norman  period  the  great  body  of  the  people 
lived  by  agriculture.  Society  and  government  rested 
upon  the  land.  Under  the  fully  developed  feudal  system 
each  individual  held  some  fixed  relation  to  the  land.  No 
one  was  free  in  the  modern  sense,  and  no  one  was  a  slave 
in  the  sense  of  individual  chattel  slavery.  Though  there 
were  multitudes  who  were  bound  to  labour  on  their 
lords'  estates,  in  all  cases  mutual  rights  and  obligations 
existed.  If  it  was  difficult  to  distinguish  between  higher 
and  lower  nobility,  it  was  equally  difficult  to  distinguish 
the  free  from  the  not  free.  Under  the  Normans  more 
than  half  of  the  people  were  in  some  sort  of  legal  and 
customary  thraldom. ^  Four  hundred  years  later  thraldom 
had  disappeared,  but  the  change  can  be  attributed  to  no 
single  act  or  assigned  to  any  particular  time.     Varying 

1  Creasy,  The  Bise  and  Progress  of  the  English  Constitution,  p.  85. 


CHAP.  X  THE  NORMAN  PERIOD  129 

degrees  of  freedom  and  servitude  always  existed  upon  the 
estates  of  the  nobles,  but  the  results  of  political  strife 
were,  on  the  whole,  progressively  favourable  to  freedom. 

Great  importance  is  to  be  attached  to  the  position  of 
the  people  who  lived  in  towns  and  cities,  and  were 
engaged  in  other  than  agricultural  pursuits.  These  were 
always  less  dependent  than  the  country  folk,  and  they 
were  a  factor  to  be  reckoned  with  in  the  contests  between 
kings  and  lords.  The  organization  of  guilds  and  friendly 
societies  in  the  towns  gave  to  large  classes  experience  in 
government.  In  course  of  time  friendly  societies  with 
their  educative  advantages  extended  from  the  towns  to 
the  country.  As  there  were  higher  and  lower  nobility 
and  clergy,  so  there  were  higher  and  lower  freemen  in 
towns  and  cities ;  and  higher  and  lower  both  among  the 
free  and  the  unfree  in  the  country.  Wherever  a  man 
was  placed  on  the  scale,  there  would  be  sonio  above  him 
whose  favour  might  be  won  by  furnishing  aid  in  those 
conflicts  and  contests  from  which  no  rank  or  class  was 
exempt. 

The  motive  usually  attributed  to  William  I.  for  preserv- 
ing the  local  governments  of  the  English  in  towns,  coun- 
ties, hundreds,  and  parishes,  was  that  he  might  the  more 
readily  resist  the  encroachments  of  feudal  lords.  It  is 
certain  that  from  these  local  governments  we  derive 
important  and  characteristic  features  of  the  English  gov- 
ernment. Opinions  are  in  conflict  as  to  the  origin  of  the 
jury  system.  Yet  whether  we  say  that  the  system  origi- 
nated in  the  local  governments  in  England,  or  that  it  was 
imported  by  William  from  Normandy,  the  fact  remains, 
however,  that  it  is  only  in  England  that  the  system 
became  permanently  established.  And  we  shall  see  that 
out  of  the  same  habits  and  customs  which  established  the 
jury,  representation  in  Parliament  was  finally  attained. 
But  at  all  times  it  was  the  relation  of  the  local  govern- 


130  GROWTH   OF   THE   ENGLISH   CONSTITUTION      chap,  x 

ments  to  the  royal  treasury  which  was  the  chief  source  of 
the  power  and  influence  of  the  people. 

There  was  another  institution  which  William  found 
among  the  English  people,  and  which  was  of  much  impor- 
tance in  his  government.  It  was  the  custom  of  having 
the  able-bodied  men  in  the  hundreds  learn  the  use  of 
weapons  of  war.  From  time  immemorial  such  persons  in 
each  neighbourhood  had  been  accustomed  to  render  mili- 
tar}^  service  in  times  of  danger.  In  places  where  the 
feudal  system  had  been  fully  established  this  old  army,  or 
fyrd,  was  displaced  by  a  feudal  army  made  up  of  the  lords 
and  their  tenants.  William  was  served  by  such  a  force, 
and  it  has  been  shown  that  this  feudal  army  was  liable  to 
be  used  for  making  war  upon  tlie  King  himself.  He 
therefore  took  care  that  the  fyrd  also  should  be  preserved 
and  strengthened  in  order  that  he  might  have  a  force  to 
use  against  his  refractory  barons.^  The  Norman  kings 
were  thus  provided  Avith  a  feudal  army  to  use  against  the 
English,  and  an  English  army  .to  use,  in  case  of  need, 
against  the  feudal  nobles.  We  shall  see  later  that  the 
people's  army  became  a  leading  factor  in  the  origin  of  the 
modern  Constitution. 

From  the  preceding  considerations  it  appears  that  the 
People  held  an  important  place  in  the  government  of  the 
Norman  sovereigns,  because  of  their  relations  to  local 
government ;  because  of  their  relation  to  the  jury  system 
and  to  the  financial  policy  of  the  King  ;  and  because  of 
their  relation  to  the  fyrd,  or  national  militia. 

It  should  be  observed  that  while  the  terms  which  desig- 
nate the  different  sources  of  power  and  influence  are  in- 
definite in  their  meanings,  they  nevertheless  truly  repre- 
sent the  things  they  are  designed  to  denote.  It  is  in 
large  part  because  the  Crown,  the  Nobility,  the  Church, 
and  the  People  were  not  clearly  defined,  either  as  to  the 
1  See  Stubbs,  Constitutional  History  of  England^  Vol.  I.,  p.  268. 


CHAP.  X  THE   NORMAN   PERIOD  131 

persons  composing  them  or  as  to  the  limits  of  their  power 
and  influence,  that  what  we  now  know  as  the  English 
Constitution  has  come  into  existence.  The  modern  Con- 
stitution exists  as  a  result  of  the  continuous  conflict  over 
the  rights  and  privileges  of  these  respective  classes. 

In  former  chapters  it  has  been  shown  that  the  balancing 
of  forces  which  determines  the  working  of  the  English 
Constitution  of  to-day  is  found  to  rest  in  the  two  political 
parties.  In  other  words,  the  political  parties  are  of  the 
very  essence  of  the  modern  Constitution.  But  in  the 
time  of  the  Norman  kings  there  were  no  political  parties 
in  the  modern  sense  of  the  words.  The  party  of  recent 
times  is  based  upon  public  opinion,  and  this  in  turn  grows 
out  of  the  prevalent  ideas  of  national  unity.  Eight 
hundred  years  ago  there  were  class  opinions  and  class 
interests,  but  there  was  no  idea  of  common  rights  for  the 
whole  nation.  Even  the  many  Normans  who  spoke  the 
French  language,  and  were  thus  readilv  distinguished 
from  the  English,  did  not  form  a  distinct  political  party, 
though  they  filled  the  high  offices  in  Church  and  State 
and  lived  on  lands  taken  from  the  former  English  owners. 

At  first  there  must  have  been  a  rather  sharp  line  of  dis- 
tinction between  Normans  and  English ;  but  many  of  the 
more  important  English  proprietors  were  left  in  circum- 
stances equal  or  superior  to  those  of  the  poorer  Normans. 
In  the  contests  which  were  always  being  waged  between 
the  tenants  and  their  lords,  many  Norman  tenants  cast 
in  their  lots  with  the  English.  Almost  from  the  begin- 
ning, the  poorer  Normans  and  the  richer  English  found 
themselves  united  in  a  common  resistance  to  the  aggressions 
of  the  higher  nobility.  In  any  case  the  contests  which 
did  arise  between  Normans  and  English  bore  little  resem- 
blance to  those  between  modern  political  parties.  We 
speak  of  the  nobility  as  a  political  factor,  it  is  true  ;  but 
the   nobility  corresponds   in   no  respect   to   the  modern 


132  GROWTH  OF  THE  ENGLISH  CONSTITUTION     chap,  x 

party,  though  in  course  of  time  factions  arose  among  the 
greater  nobles  in  which  a  trace  of  party  life  may  be  dis- 
cerned. Again,  neither  the  Church  nor  any  division  of 
the  Church  resembles  a  political  party.  Each  class  of 
men,  whether  lay  or  clerical,  contended  for  the  privileges 
which  it  wished  to  enjoy.  They  had  not  in  their  minds 
the  ideas  out  of  which  political  parties,  as  now  under- 
stood, could  be  formed.  When,  however,  there  arose  a 
long  contest  concerning  the  right  to  the  throne,  factions 
appeared  among  the  influential  classes  which  bore  some 
faint  resemblance  to  political  parties. 


CHAPTER   XI 

EARLY  CONTENTION  AND   STRIFE 

rFlHE  modern  English  Constitution  is  the  result  of 
-*-  political  contention  ;  its  history,  therefore,  is  a  his- 
tory of  political  warfare.  It  would  be  difficult  to  name 
all  the  subjects  of  strife  which  have  had  a  share  in  gen- 
erating the  Constitution,  and  there  has  been  much  po- 
litical conflict  whose  relation  to  the  development  of  the 
Constitution  is  not  evident.  Only  those  subjects  of  con- 
troversy will  here  be  discussed,  whose  relations  to  the 
balancing  of  the  high  powers  of  State  are  manifest ;  for 
it  is  this  balancing  of  governmental  forces  which  should 
be  constantly  kept  in  mind  in  an  attempt  to  trace  the 
origin  of  the  Constitution. 

Prominent  among  these  contentions  has  been  the  ques- 
tion, who  should  be  king  —  a  question  already  old  before 
the  Conqueror  came.  The  old  national  assembly,  the 
Witenagemot,  or  Witan,  had  always  had  a  share  in  in- 
ducting a  new  king  into  office,  and  well-defined  instances 
may  be  found  in  which  the  assembly  elected  the  new 
king.^  There  was  usage  in  favour  of  succession  by  the 
oldest  son,  or,  at  least,  by  the  oldest  son  who  was  able  to 
lead  armies.    Cases  could  also  be  adduced  where  the  reign- 

1  For  example,  Edgar,  959 ;  Edmund,  1016  ;  Harold,  1066.  See  Free- 
man, Norman  Conquest,  Vol.  I.,  p.  72,  and  notes  2  and  3.  Also  Stubbs, 
Constitutional  History,  Vol.  I.,  p.  135.  Gneist  takes  a  somewhat  differ- 
ent view.     See  The  English  Parliament,  translated  by  Shee,  pp.  29,  30. 

133 


134  GROWTH  0:P  the  ENGLISH  CONSTITUTION    chap,  xi 

ing  king  made  provision  for  a  successor.  In  the  history  of 
this  contention,  much  has  been  made  of  the  fact  that  at 
all  times,  before  the  Conquest  and  after,  there  has  been  a 
national  assembly  under  the  name  of  Witan,  Council,  or 
Parliament,  which  has  had  a  share  in  inducting  the  new 
king  into  office.  It  is  not  necessary  for  us  to  believe 
that  this  fact  in  the  early  history  was  often  of  real  con- 
sequence in  determining  who  should  be  king.  Since 
there  has  always  existed  a  national  assembly,  it  has  been 
a  matter  of  necessity  that  the  new  king  should  come  into 
working  relations  with  it. 

The  two  things  that  should  be  held  in  mind  as 
especially  significant  are,  first,  that  a  national  assembly 
always  existed ;  and  second,  that  as  the  national 
assembly  has  always  taken  a  part  in  inducting  the 
new  king  into  office,  it  has  been  easier  for  modern 
reformers  to  make  good  the  claim  that  Parliament  has 
a  right  to  depose  one  monarch  and  enthrone  another. 
The  one  change  in  the  English  government  which  his- 
torians have  agreed  to  call  The  Revolution^  is  that  which 
occurred  when  an  irregular  Parliament,  a  Parliament 
whose  composition  the  stickler  for  legal  form  would  call 
unconstitutional,  voted,  while  the  former  sovereign  was 
still  alive,  that  the  throne  was  vacant  and  that  it  should 
be  filled  by  another.  A  little  later,  the  Parliament  pro- 
vided by  elaborate  statute  for  the  filling  of  the  office  for 
future  generations.  All  strifes,  therefore,  pertaining  to 
the  vacating  or  the  filling  of  the  throne  have  a  constitu- 
tional importance.  Much  of  the  peculiar  balancing  of 
forces  in  the  government  made  by  the  Norman  kings  is  to 
be  explained  by  the  fact  that  their  title  to  the  throne  was 
disputed.  It  would  seem  that,  but  for  this  fact,  these 
powerful  kings  might  have  made  themselves  absolute,  and 
thus  have  forestalled  the  development  of  what  we  now 
know  as  the  Constitution. 


CHAP.  XI  EARLY  CONTENTION  AND  STRIFE  136 

Another  sort  of  contention  which  is  of  great  constitu- 
tional importance  has  been  over  the  question  as  to  how 
the  feudal  lords  who  were  tenants-in-chief  of  the  King 
were  bound  to  serve  him.  They  held  the  lands  under 
the  feudal  obligation  of  service  according  to  the  feudal 
customs  of  the  time.  Doubt  always  existed  as  to  how 
much  and  what  sort  of  service  should  be  rendered.  The 
tenants  always  felt  that  powerful  kings  who  solved  the 
doubts  in  their  own  favour  were  getting  more  than  their 
dues.  These  questions  were  often  subjects  of  notice  in 
the  meetings  of  the  Council.  Kings  were  often  guilty 
of  disregarding  details  in  the  settlements  reached  in 
the  meetings  of  the  Council.  Contests  of  this  sort  had 
always  a  tendency  to  affect  the  power  of  the  Crown  in 
its  relations  to  the  barons  and  to  other  classes  in  the 
nation. 

Closely  akin  to  quarrels  between  the  King  and  his 
tenants  over  feudal  dues  were-  those  between  the  lords 
and  their  own  feudal  tenants.  Undoubtedly  much  of 
the  contention  between  the  under-tenantry  and  their 
lords  went  on  without  exerting  any  perceptible  constitu- 
tional influence,  but  some  of  this  strife  did  manifestly 
affect  the  relative  positions  of  the  high  powers  of  State. 
It  was  often  for  the  King's  interest  to  favour  the  claims 
of  the  under-tenantry,  in  order  that  he  might  have  their 
sympathy  and  aid  in  his  own  contests  with  the  barons. 
It  would  thus  come  to  pass,  that  while  the  same  feudal 
law  or  custom  applied  to  the  King's  tenants  and  to  the 
tenants  of  his  barons,  in  the  one  case  the  King  was  dis- 
posed to  solve  a  doubt  in  favour  of  the  tenant,  and  in  the 
other  in  favour  of  the  lord.  The  lords,  too,  would  wish 
to  act  upon  the  King's  interpretation  in  dealing  with  their 
own  tenants,  and  would  wish  to  have  the  King  act  upon 
their  tenants'  interpretation  in  dealing  with  themselves. 
It  thus  came  about  that  whenever  the  great  lords  secured 


136  GROWTH   OF   THE   ENGLISH   CONSTITUTION    chap,  xi 

a  concession  from  the  King,  the  same  favours,  so  far  as  the 
words  of  the  law  were  concerned,  were  usually  extended 
to  all  tenants.  The  lords  would  agree  to  this,  hoping 
that  it  would  influence  the  King  in  their  favour,  expect- 
ing to  violate  or  to  avoid  the  provisions  in  the  case  of 
their  own  tenants.  The  thing  that  is  here  of  especial 
constitutional  consequence  is  the  fact  that  laws  were 
early  made,  limiting  the  power  of  feudal  lords.  Whether 
these  laws  had  much  effect  at  the  time  in  improving  the 
condition  of  the  tenants,  may  be  doubted.  In  later  years, 
the  fact  that  such  laws  had  been  passed  by  the  early 
kings  and  their  councils  had  a  great  effect  as  an  educa- 
tional factor  in  the  contest  for  liberty. 

Besides  the  revenues  which  came  into  the  King's  hand 
from  his  own  immediate  tenants,  there  were  other  sources 
of  income.  In  each  of  the  shires  there  were  lands  known 
as  crown  lands,  which  had  not  been  granted  to  any 
feudal  tenant.  For  the  use  of  these  the  occupant  paid  a 
portion  of  the  crop.  Afterwards  this  was  commuted  to 
a  payment  in  money,^  which  made  up  a  portion  of  the 
King's  ordinary  revenue,  and  which  it  was  one  of  the 
duties  of  the  sheriffs  to  collect  for  him. 

Again,  in  the  contests  with  the  Danes,  the  English  kings 
had  fallen  into  the  custom  of  raising  sums  of  money  for 
bribing  those  powerful  Northmen  to  leave  the  country. 
This  was  developed  into  an  annual  tax  of  two  shillings  on 
every  hide  (about  one  hundred  and  twenty  acres)  of  land, 
under  the  name  of  Banegeld.  All  these  methods  of  rais- 
ing revenue  gave  rise  to  perpetual  contention,  and  nearly 
all  the  strife  of  that  sort  is  of  constitutional  value.  The 
people  did  not  like  to  pay  the  Danegeld  when  there  were 
no  more  marauding  Danes  to  bribe,  and  Edward  the  Con- 
fessor abolished  it  by  law.     The  Norman  kings  restored 

1  For  account  of  change  to  money  payment,  see  Ashley's  English 
Economic  History^  Vol.  I.,  p.  47. 


CHAP.  XI  EARLY  CONTENTION  AND  STRIFE  137 

it.  Moreover,  a  powerful  king  like  William  I.  could  arbi- 
trarily levy  and  collect  taxes.  At  one  time  he  increased 
the  Danegeld  to  three  times  the  ordinary  amount.  But, 
however  arbitrary  and  powerful  a  king  may  have  felt  him- 
self to  be,  in  levying  and  collecting  a  tax  he  was  obliged 
to  employ  administrative  agents.  This  made  it  possible 
for  those  who  came  later  to  contend  that  these  administra- 
tive agents,  who  collected  and  paid  over  the  King's  reve- 
nue, gave  their  consent  to  the  payment,  on  behalf  of  those 
from  whom  it  came.  The  early  Kings  received  large  reve- 
nues independently  of  the  consent  of  the  people  and  of  the 
people's  representatives  ;  but  there  were  always  unsettled 
questions  about  those  permanent  sources  of  income  which 
kept  the  powerful  classes  in  a  belligerent  attitude  against 
the  demands  of  the  King.  It  is  not  necessary  to  believe 
that  the  modern  constitutional  principle  of  taxation  by  the 
people's  representatives  had  dawned  in  any  mind  so  early 
as  the  Norman  or  the  Plantagenet  period.  Such  a  notion 
was  then  wholly  incomprehensible.  Various  ruling  classes 
were  contending  for  their  own  existence.  To  secure  the 
effective  cooperation  of  the  lower  classes,  the  rulers 
respected  in  some  measure  their  habits  and  prejudices. 
When  the  lords  and  bishops  induced  a  weak  or  needy 
king  to  agree  to  a  rule  against  levying  a  new  tax  without 
their  consent,  we  need  not  believe  that  they  intended  to 
vindicate  any  well-understood  right.  But  the  fact  that 
these  things  were  done  made  it  easier  for  modern  states- 
men to  establish  the  fundamental  principle  of  taxation  by 
consent. 

The  revenue  of  the  Church  also  gave  rise  to  many  con- 
tentions which  have  great  constitutional  value.  The 
Church  owned  a  very  large  proportion  of  the  best  lands 
in  the  kingdom,  and  it  was  expected  that  the  greater  part 
of  the  revenues  from  those  lands  would  go  to  the  support 
of  the  clergy.     But  should  those  rich  estates  be  exempt 


138  GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xi 

from  all  the  common  burdens  of  the  State  ?  The  Pope 
and  some  of  the  clergy  answered  this  question  in  the 
affirmative,  but  the  English  kings  and  lords  would  never 
assent  to  this  conclusion.  The  Norman  kings  insisted  that 
the  bishops  should  acknowledge  them  as  feudal  superiors 
and  pay  into  the  royal  treasury  a  sum  of  money  in  lieu 
of  the  military  service  which  the  lay  lords  were  required 
to  render.  But  what  the  amount  of  that  sum  should  be 
was  often  a  matter  of  dispute.  There  was  always  the 
feeling  among  the  laity  that  the  Church  lands  were  not 
bearing  their  full  share  of  the  common  burden,  and  we 
shall  see  that  this  feeling  gave  rise  to  important  constitu- 
tional changes.  Again,  the  contention  as  to  how  much 
of  the  Church  revenue  should  go  to  the  See  of  Rome  often 
affected  the  power  of  the  Church  as  a  part  of  the  English 
government.  Then,  the  question  whether  the  King  should 
leave  the  Church  offices  vacant  and  appropriate  their  reve- 
nues led  to  occasional  contests  which  modified  the  power 
of  the  King. 

Contests  arising  out  of  the  fact  that  the  kings  of 
England  had  possessions  in  France  also  affected  the 
relative  powers  of  the  classes  in  England.  William 
I.,  as  we  have  seen,  succeeded  in  so  disposing  the 
various  forces  in  his  kingdom  as  to  husband  and 
strengthen  the  powers  of  the  Crown.  As  soon  as  William 
was  dead,  there  arose  a  conflict  which  tested  his  work. 
Robert,  the  oldest  son  of  the  Conqueror,  became  Duke 
of  Normandy  upon  the  death  of  William.  Many  of  the 
English  barons  had  estates  in  France  as  well  as  in  Eng- 
land, and  they  naturally  wished  the  kingdom  of  England 
and  the  dukedom  of  Normandy  to  continue  in  the  hands 
of  the  same  person ;  for  in  case  of  war  between  Normans 
and  English,  a  part,  at  least,  of  their  estates  would  be 
threatened.  William,  the  second  son  of  the  Conqueror, 
hastened  to  London  and  secured  the  crown  at  the  hands 


CHAP.  XI  EARLY   CONTENTION  AND   STRIFE  139 

of  the  Archbishop  and  a  portion  of  the  Council.  A 
number  of  the  barons  raised  the  standard  of  rebellion, 
with  the  intention  of  deposing  William  II.  and  crown- 
ing Robert.  With  the  support  of  the  higher  clergy 
William  secured  efficient  aid  from  the  English  people. 
The  fyrd,  or  the  national  army,  hastened  to  his  assistance 
and  enabled  him  easily  to  overcome  the  rebellious  barons. 

William  II.  was  a  man  of  extraordinary  wickedness. 
He  tyrannized  over  all  classes  and  made  himself  person- 
ally offensive.  Yet  for  all  that,  he  retained  a  firm  hold 
upon  the  crown  to  the  day  of  his  death.  That  such  a 
man  should  continue  in  possession  of  so  much  power 
argues  much  for  the  strength  of  the  office  independently 
of  the  person  of  the  Monarch.  Yet  it  should  be  remem- 
bered that  if  William  II.  was  wicked,  he  was  not  weak. 
He  asserted  every  power  which  his  father  had  claimed, 
while  he  abused  every  power  which  he  exercised.  Still 
one  must  not  argue  from  this  that  the  power  of  the  Crown 
was  strong  enough  permanently  to  endure  the  strain  of 
such  a  personality.  After  a  rule  of  thirteen  years  he 
died,  as  is  believed,  at  the  hands  of  an  assassin. 

Certain  contests  in  the  reign  of  William  II.  well  illus- 
trate the  balancing  of  the  dominant  forces  of  the  govern- 
ment. William  showed  good  judgment  when  he  appealed 
to  the  English  people  for  support  by  promising  them 
better  laws.  It  is  not  at  all  unreasonable  to  suppose 
that  there  were  probably  multitudes  among  the  English 
people  who  believed  that  it  would  be  decidedly  to  their 
advantage  to  have  a  king  who  was  all  their  own,  and  who 
was  not  at  the  same  time  Duke  of  Normandy.  Hence, 
faithless  as  the  King  was,  it  was  not  entirely  unwise 
for  the  English  to  continue  faithful  to  him.  With  the 
adherence  of  the  English  people  and  the  English  national 
army,  William  II.  was  able  to  tyrannize  over  the  feudal 
nobility,  and  to  exact  many  extraordinary  feudal  dues. 


140  GROWTH  OF  THE  iENGLISH  CONSTlTUTlOK^    chap,  xt 

He  was  also  able  to  oppress  the  Church  by  compelling 
the  holders  of  Church  lands  to  assume  many  of  the 
feudal  burdens,  and  by  leaving  the  Church  offices  vacant 
and  appropriating  the  revenue  which  would  otherwise  have 
gone  to  the  Church. 

I  have  not  mentioned  the  Council  as  a  distinct  source  of 
power  and  influence  because  I  do  not  believe  that  at  this 
time  there  resided  in  the  Council,  in  itself  considered,  a 
clearly  discernible  power  which  counted  for  much  in  the 
balancing  of  the  dominant  forces  of  the  State.  The  nobil- 
ity were  powerful,  not  because  certain  of  them  were  accus- 
tomed to  meet  the  King  in  the  Great  Council,  but  because 
they  had  bands  of  soldiers  whom  they  could  call  to  their 
aid  and  make  war  upon  the  King.  The  clergy  were  pow- 
erful, not  because  their  bishops  and  abbots  sat  in  the 
Council  of  the  King,  but  because  they  were  an  exclusive, 
educated  class ;  because  they  held  much  land ;  because 
they  were  reverenced  and  respected  by  many  influential 
persons ;  because  they  could  lead  the  people  in  ways  in 
which  laymen  could  not  lead  them,  and  because  of  their 
system  of  Church  courts.  But  in  spite  of  all  this  it  was 
in  the  main  true,  during  this  period  in  English  history, 
that  when  a  king  summoned  his  lords  and  bishops 
into  his  presence  in  the  Council,  he  was  able  to  per- 
suade them  to  agree  to  his  predetermined  policy.  The 
Council  existed  as  a  practical  agency  through  which  the 
king  could  carry  his  policy  into  effect.  It  was  not  in 
the  modern  sense  a  legislative  body  having  the  right  to 
initiate  policies. 

An  incident  in  the  reign  of  William  II.  may  serve  to 
illustrate  the  King's  relation  to  the  Council,  while  at  the 
same  time  it  illustrates  the  sort  of  contention  which  has 
produced  the  modern  Constitution.  Anselm,  the  more 
than  usually  faithful  Archbishop  of  Canterbury,  was 
using  all  his  power  to  restrain  the  evil   courses   of  the 


CHAP.  XI  EARLY   CONTENTION  AND   STRIFE  141 

King  and  the  immorality  of  the  people.  The  See  of 
Canterbury  had  been  vacant  for  four  years  and  the  King 
had  resisted  all  entreaties  to  make  an  appointment,  yet, 
in  1093,  during  an  illness  which  he  expected  would 
prove  fatal,  he  had  almost  forced  Anselm  to  assume 
the  duties  of  the  office  of  archbishop,  though  the  ap- 
pointment had  not  received  the  approval  of  the  Pope. 
At  this  time  two  men  claimed  the  papal  chair.  Anselm 
acknowledged  Urban  as  Pope,  and  wished  permission  to 
go  to  Rome  and  receive  from  his  hands  the  symbol  of  his 
office.  William  acknowledged  neither  contestant,  and 
forbade  Anselm  to  recognize  any  one  as  Pope  without 
his  consent,  pleading  in  support  of  this  command  a  law 
of  William  I.  Anselm  desired  to  secure  the  support  of 
the  Pope  in  his  contest  against  immorality  in  England. 
William  wished  to  be  free  from  all  such  restraint. 
Finally  Anselm  took  the  bold  course  of  bringing  the 
matter  before  the  Council.  We  are  told  that  he  stated 
his  case  moderately  but  firmly.  The  barons,  pleased  to 
see  the  King  resisted,  sided  with  the  Archbishop,  while 
the  bishops,  being  tools  of  the  King  appointed  from  among 
his  clerks,  supported  their  patron.  It  is  mentioned  as  a 
remarkable  circumstance  that  Anselm,  after  daring  to 
oppose  the  King  in  the  Council,  went  into  a  chapel  and 
slept  quietly,  while  the  King,  not  having  the  support  of 
the  barons,  did  not  dare  to  punish  him.^  To  oppose 
the  King  in  Council  was  regarded  as  a  capital  offence. 
Anselm,  however,  though  he  saved  his  life  on  account 
of  the  opposition  of  the  barons  to  the  King,  did  not 
carry  his  point.  Two  years  later  he  fled  the  coun- 
try, went  to  Rome,  and  left  the  King  to  seize  his 
estates. 

To  omit  the  Council  from   the   list   of  the   dominant 
factors  in  this  period  of  English  history  would  seem  to 
1  Gardiner's  Student^ s  History^  p.  118. 


142  GROWTH  OF  THE   ENGLISH  CONSTITUTION    chap,  xi 

many  like  leaving  out  of  the  discussion  the  Constitution 
itself,  and  we  must  certainly  not  underrate  the  fact  that 
there  was  from  the  beginning  a  national  assembly  which, 
under  various  names,  has  continued  to  the  present  day. 
The  mere  fact  of  the  uninterrupted  existence  of  such  a 
body  has  vastly  more  importance  in  rationally  account- 
ing for  the  English  Constitution  than  can  be  properly 
attached  to  any  special  powers  which  the  Council  exer- 
cised at  any  one  time.^  The  continued  weakness  of  the 
national  assembly  during  the  Middle  Ages  was  a  neces- 
sary condition  to  its  continued  existence,  and  it  was  not 
until  the  time  of  Elizabeth  and  the  early  Stuarts  that 
Parliament  as  an  institution  became  a  continuous  and 
important  check  upon  the  Monarch.  When  that  time 
came,  the  fact  that  a  national  assembly  had  at  all  times 
existed  was  of  great  consequence.  If  at  any  much 
earlier  time  the  Parliament,  as  an  institution,  had  exer- 
cised important  powers  independently  of  the  will  of 
monarch  or  armed  faction,  its  existence  would  not  have 
been  continuous.  Its  perpetual  weakness  saved  it  from 
extinction.  But,  it  may  be  asked.  Did  not  the  great 
Henry  VIII.  yield  to  the  demands  of  the  House  of 
Commons?  Yes,  Henry  yielded  to  the  Commons  much 
as  the  carpenter  endures  certain  inconveniences  incident 
to  edged  tools.  The  House  of  Commons  was  a  tool  of 
the  King,  and  he  could  afford  to  humour  it  in  minor 
matters. 

But  to  return  to  our  discussion :  upon  the  death  of 
William  II.  there  was  again  a  contest  for  the  crown  of 
England.  Henry,  the  youngest  son  of  William  the  Con- 
queror, became  king.  Robert,  Duke  of  Normandy,  in- 
vaded the    country   to   vindicate   his   own   right   to   the 

1  See  Medley's  English  Constitutional  History^  p.  78  et  seq.,  for  a 
succinct  statement  of  the  development  of  the  several  executive  and  legis- 
lative councils. 


CHAP.  XI  EARLY   CONTENTION  AND   STRIFE  143 

crown.  Henry  was  strong  in  the  support  of  the  English, 
and  Robert  was  compelled  to  surrender  his  claim.  Upon 
becoming  king,  Henry  issued  a  charter  in  which  he  en- 
gaged to  remove  the  abuses  suffered  under  his  prede- 
cessor. The  Church  was  to  be  free,  and  the  King  was 
not  to  take  the  revenues  of  the  vacant  Church  offices. 
He  was  not  to  exact  from  his  tenants  unlawful  dues, 
neither  were  the  lords  to  make  unlawful  exactions. 
Having  married  an  English  wife,  and  thus  increased  his 
favour  with  his  English  subjects,  Henry  recalled  Anselm, 
and  gained  the  loyal  support  of  the  Church.  He  also 
strengthened  many  of  the  towns  by  granting  them  char- 
ters. So  powerfully  was  he  supported  by  the  Church 
and  the  English  people  that  he  easily  overcame  and  de- 
stroyed the  hostile  barons.  By  means  of  the  lands  taken 
from  the  rebellious  lords  a  new  nobility  was  created  to 
whom  the  King  looked  for  support. 

The  national  assembly  of  the  reign  of  Henry  I.  was  a 
body  ill-defined  both  as  to  the  persons  composing  it  and 
as  to  the  business  transacted  by  them.  There  was  the 
sanction  of  usage  for  its  assembling  three  times  each  year, 
upon  the  occasions  of  the  three  great  Church  festivals, 
but  the  practice  was  by  no  means  uniform.  Earls  and 
barons  were  summoned  by  the  Sovereign's  writ,  but  the 
number  summoned  was  variable.  There  was  the  same 
uncertainty  as  to  the  number  of  bishops,  abbots,  and  priors 
called  to  the  assembly.  Besides  the  classes  mentioned, 
the  meetings  of  the  Council,  or  national  assembly,  were 
always  attended  by  the  high  officers  of  State,  a  part  of 
whom,  though  not  all,  were  included  in  one  or  another 
of  those  classes.  Some  were  hereditary  officers  in  the 
royal  household.  Some  were  holders  of  offices  secured  by 
the  payment  of  money  to  the  King.  Some  were  selected 
on  account  of  their  learning  or  because  of  the  Monarch's 
personal  favour.     Besides  the  higher  nobility,  the  higher 


144  GROWTH  OF  THE   ENGLISH  CONSTITUTION    chap,  xi 

clergy,  and  the  high  officers  of  State,  certain  other 
classes  were  often  summoned  to  the  meetings  of  the 
Council  by  writs  addressed  to  the  sheriffs.^  The  business 
transacted  at  these  meetings  was  sometimes  judicial  in 
character,  at  other  times  legislative,  financial,  or  admin- 
istrative. 

The  various  names  given  to  the  early  national  assembly 
are  drawn  from  four  different  languages.  From  the  Saxon 
are  derived  Witan  and  Witenagemote ;  from  the  Latin  we 
have  Magnum  Concilium  and  Curia  Regis ;  from  the  Eng- 
lish, Great  Council^  Common  Council^  and  King^s  Court; 
while  from  the  French  comes  the  word  Parliament.  Even 
these  are  by  no  means  all  the  terms  used  to  designate  the 
national  assembly.  It  is  to  be  borne  in  mind  that  these 
names  cannot  all  be  applied  at  any  one  time  to  one  and 
the  same  institution,  yet  the  variety  of  names  used,  and 
the  variety  of  meanings  attached  to  the  various  names, 
fitly  represent  the  indeterminate  character  of  the  body 
which  they  designate. ^  That  body  is  a  thoroughly 
English  institution,  and,  in  a  sense,  a  thoroughly  rep- 
resentative institution,  because  it  defies  accurate  de- 
scription. 

1  Stubbs,  Constitutional  History,  Vol.  I. ,  p.  567. 

2  YTeemst,n,  Growth  of  the  English  Constitution,  p.  62  et  seq. 


CHAPTER  XII 

ROYAL  RULE  BY  MEANS  OF  THE  COUNCIL 

TOURING  the  reign  of  Henry  I.  appear  the  beginnings 
-*->'  of  an  important  change  in  the  national  assembly. 
The  business  of  government  had  in  previous  reigns  been 
chiefly  in  the  hands  of  the  great  feudal  barons  of  the  Con- 
quest. In  them  Henry  saw  his  most  dangerous  enemies, 
for  they  were  continually  seeking  to  depose  him,  and 
crown  his  brother  Robert  in  his  stead.  In  order  to  make 
himself  more  secure  upon  his  throne,  he  adopted  certain 
measures  which  had  far-reaching  consequences.  He  made 
Roger,  Bishop  of  Salisbury,  his  justiciar.  Roger  did  not 
himself  spring  from  one  of  the  great  families,  and  he  chose 
other  men  of  like  condition,  many  of  whom  had  received 
grants  of  land  taken  from  rebellious  barons,  to  assist  him 
in  reorganizing  the  King's  government.  In  counties,  hun- 
dreds, and  towns,  the  great  lords  were  found  to  have  en- 
croached upon  the  powers  of  the  courts.  The  ancient 
rights  and  duties  of  those  courts  were  restored,  and  sheriffs 
drawn  from  the  new  nobility  were  charged  with  the  task 
of  guarding  the  privileges  of  the  local  courts.  From  the 
newer  nobility  the  high  officers  of  State  were  also  chosen, 
and  that  part  of  the  national  assembly  which  they  com- 
posed was  permitted  to  attain  during  Henry's  reign  a  new 
importance.  The  smaller  body,  as  a  matter  of  fact,  gradu- 
ally assumed  the  business  of  the  larger  assembly,  of  which 
it  was  a  part.  From  the  checkered  table  at  which  these 
I-  146 


146  GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xii 

high  officers  of  State  sat,  when  attending  to  the  King's 
financial  business,  they  were  called  Barons  of  the  Ex- 
chequer. The  same  officers  also  sat  in  the  highest  court 
of  the  realm  and  decided  causes  in  the  King's  name. 
Justices  from  this  court  visited  the  county  courts  in  the 
interest  of  both  the  King's  treasury  and  the  King's 
justice. 

This  compact  body  of  officers  attending  to  the  whole 
range  of  governmental  business  is  of  peculiar  interest  be- 
cause of  its  relation  to  the  development  of  a  separate  judi- 
ciary in  the  centuries  following.  Modern  writers  on  the 
English  Constitution  have  found  it  convenient  to  appro- 
priate the  term  Curia  Regis  to  this  smaller  body  of  judi- 
cial and  administrative  officers  which  Henry  I.  employed. 
We  shall  see  later  that  in  the  time  of  Henry  II.  the 
name  was  applied  to  a  similar  body  with  more  specific 
organization,  and  that  later  still  there  were  developed 
from  such  a  body  of  officers  the  various  high  courts 
of  England,  which  have  continued  to  the  present  day. 
While  it  is  certainly  convenient  to  have  a  specific  term 
for  this  important  body,  or  institution,  it  must  not  be  for- 
gotten that  historically  the  designation  was  less  definite 
in  its  meaning. 

Thomas  Jefferson,  following  a  French  statistician,  ob- 
serves that  the  majority  of  a  political  generation  passes 
away  in  twenty  years.  During  twenty  years  those  com- 
posing a  generation  are  receiving  lasting  impressions  as 
children  and  youth  before  they  become  actors  in  the 
political  arena.  A  boy,  it  may  be  said,  begins  to  re- 
ceive such  impressions  at  the  age  of  five,  and  to  become 
an  actor  at  the  age  of  twenty-five.  During  the  same 
period  a  majority  of  those  most  active  in  politics  have 
passed  away.  Jefferson  reasons  from  this,  that  free  con- 
stitutions ought  to  cease  to  be  binding  at  the  close  of  each 
period  of  twenty  years,  so  that  each  generation  should 


CHAP.  XII        ROYAL  RULE   BY   MEANS   OF   COUxNCIL  147 

be  permitted  to  determine  for  itself  its  fundamental  laws. 
This  particular  conclusion  may  not  have  in  it  much 
wisdom,  but  it  is  worth  while  for  the  historian  to  pay 
attention  to  the  facts  upon  which  the  conclusion  is  based. 

When  Henry  I.  died,  three  political  generations  of 
English  and  Normans  had  been  subjected  to  the  rule 
of  firm  and  powerful  kings.  The  French,  as  well  as  the 
English,  living  at  that  time  in  England  had  been  born 
there,  and  had  come  to  look  upon  England  as  their 
home.  There  is  considerable  reason  to  believe  that  the 
tyranny  of  William  II.  made  it  easier  for  Henry  I., 
who  was  firm  without  being  tyrannical,  to  crush  the 
power  of  the  barons,  and  rule  almost  as  an  absolute 
monarch.  In  the  reign  of  Stephen,  we  have  an  in- 
stance of  failure  in  the  power  of  the  monarch,  and  the 
greater  part  of  a  whole  political  generation  is,  in  conse- 
quence, given  over  to  feudal  anarchy  and  brutality. 
Stephen  could  not,  or  he  would  not,  restrain  and  control 
his  powerful  subjects.  The  dispute  as  to  who  should 
wear  the  crown  continued  throughout  his  reign.  The 
weakness  of  the  Crown  served  to  reveal  the  power  of 
the  Church,  which  was  affected  less  than  other  parts  of 
the  government  by  the  general  anarchy  and  confusion. 
Stephen  first  secured  the  crown  by  the  favour  of  the 
bishops.  Later,  when  the  bishops  favoured  the  cause  of 
Matilda,  she  prevailed  over  Stephen,  and  was  successful 
so  long  as  she  was  heartily  supported  by  the  clergy.  It 
was  the  clergy  who  finally  —  and  only  in  the  year  before 
the  King's  death  —  secured  a  compromise,  whereby  Stephen 
should  occupy  the  throne  so  long  as  he  lived,  and  should 
be  succeeded  by  Henry,  Matilda's  son. 

There  is  much  reason  to  believe  that  the  final  effect 
of  the  reign  of  Stephen  was  to  strengthen  the  power 
of  the  Crown  and  to  weaken  that  of  the  feudal  lords. 
Under  Henry  I.  the  people  had  experienced  the  ad  van- 


148  GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xii 

tages  of  having  a  king  who  protected  them  from  the 
lords.  Under  Stephen  they  had  an  experience  of  the 
unrestrained  violence  of  the  lords.  If,  under  such  cir- 
cumstances, the  power  of  the  Crown  were  to  come  into 
the  hands  of  those  who  were  able  to  make  use  of  fav- 
ourable conditions  for  two  or  three  generations,  there 
would  result  a  strong  tendency  to  favour  the  King  as 
against  the  feudal  lords.  For  the  next  thirty-five  years, 
England  was  governed  by  a  king  eminently  fitted  to  re- 
store and  strengthen  the  Crown.  Henry  II.,  the  grand- 
son of  Henry  I.,  had  lived  in  France,  where  he  held 
extensive  feudal  possessions,  until  he  became  King  of 
England.  He  was  well  acquainted  with  the  weakness  of 
the  Crown  under  the  fully  developed  feudal  government 
as  it  existed  in  France,  and  he  was  likewise  well  informed 
as  to  the  strength  of  the  English  Crown  as  it  was  during 
the  reign  of  his  grandfather.  He  set  himself  to  restore 
and  to  strengthen  the  power  of  the  Crown,  and  to  that 
end  he  took  pains  to  win  the  favour  of  all  classes  of  the 
English  people,  relying  especially  upon  the  newer  Eng- 
lish nobility  created  by  Henry  I.  The  really  dangerous 
class  was  made  up  of  the  great  barons  who  had  built 
strong  castles  for  themselves  during  the  time  of  Stephen, 
and  had  become  a  source  of  terror  to  all  who  were  less 
powerful  than  they.  Henry  destroyed  most  of  these 
castles,  and  occupied  with  his  own  forces  such  as  were 
permitted  to  remain.  He  held  frequent  meetings  of  the 
Council,  and  in  this  way  he  accustomed  the  barons  to  tak- 
ing part  with  himself  in  the  government,  thus  securing 
their  aid  instead  of  incurring  their  hostility.  He  took 
care  also  that  others  of  the  lesser  nobility  should  attend 
and  take  a  share  in  the  meetings  of  his  Council.  It  is 
evident  that  Henry  looked  upon  the  Great  Council  not  as 
a  source  of  weakness  to  the  Crown,  but  as  a  source  of 
strength. 


eitAi*.  Xlt       HOYAL  iiULE  BY  MEANS  OF  COtTNCiL  I4d 

During  the  reign  of  Henry  II.  much  progress  was 
made  in  the  development  of  a  separate  judiciary.  Henry 
I.  had  neglected  the  Great  Council  and  governed  hy 
means  of  a  smaller  administrative  body.  Henry  II.  kept 
the  higher  nobility  and  clergy  under  his  control  through- 
out his  reign  by  a  constant  use  of  the  Council,  while  at 
the  same  time  he  more  thoroughly  organized  the  high 
offices  of  State  whereby  the  King's  government  was  kept 
in  effective  working  relations  with  the  local  governments 
in  county,  hundred,  and  town.  Justices  from  the  King's 
Court,  or  Curia  Begis^  visited  the  county  courts  as  in  the 
time  of  Henry  I.  The  country  was  at  one  time  divided 
into  six  districts  with  three  justices  assigned  to  each  dis- 
trict. Later,  twenty-one  justices  were  distributed  among 
four  districts.  Five  justices  were  delegated  to  hear  claims 
and  plaints  of  the  people,  and  if  questions  arose  which  they 
could  not  decide,  such  questions  were  to  be  presented  to 
the  King  and  his  wise  men.  Henry  II.  cannot  be  said  to 
have  created  the  independent  common  law  courts,  but 
his  organization  of  the  judiciary  tended  to  that  end. 
Two  hundred  years  were  needed  to  complete  the  separa- 
tion which  finally  grew  out  of  his  system  of  courts.  There 
is  yet  in  the  judicial  functions  of  the  House  of  Lords 
and  of  the  Privy  Council  a  remnant  of  the  judicial  duties 
which  once  belonged  to  the  undivided  Curia  Regis^  which 
was  not  in  its  origin  distinguishable  from  the  one  national 
assembly. 

The  ultimate  effect  of  the  policy  of  Henry  II.  was  to 
secure  to  himself  more  complete  control  of  the  resources 
of  the  nation.  By  means  of  his  courts  he  stripped  poAver 
from  the  feudal  lords  ;  and  in  later  ages,  when  the  com- 
mon law  courts  had  become  separated  from  the  Council, 
they  served  not  only  as  courts  of  common  law,  but  also  as 
an  important  check  upon  the  power  of  the  Crown. 

The  Church  during  the  time  of  Stephen  had  encroached 


150  GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xn 

upon  the  King's  powers.  The  clergy  now  claimed  the 
right  to  be  tried  in  the  Church  courts  alone,  and  denied 
the  jurisdiction  of  the  King's  courts.  As  the  Church 
courts  could  not  inflict  the  death  penalty,  a  clerk,  or 
priest,  who  had  committed  a  capital  offence  could  not 
be  punished  like  other  men.  Henry  II.  set  himself  to 
regain  the  power  thus  lost  and  to  secure  a  uniform  ad- 
ministration of  his  laws.  Thomas  Becket,  who  had  been 
a  most  efficient  minister  of  the  King  in  the  adoption  and 
execution  of  measures  tending  to  restore  order  and  to  re- 
strain the  violence  of  the  barons,  was  made  Archbishop 
of  Canterbury.  As  Archbishop,  he  took  an  extreme  posi- 
tion in  favour  of  maintaining  the  independent  powers  of 
the  Church.  At  a  meeting  of  the  Council,  in  1163,  the 
King  proposed  that  a  certain  tax  should  be  made  a  part 
of  the  royal  revenue.  The  Archbishop  ventured  an  ob- 
jection, and  Henry,  surprised  and  enraged,  swore  a  great 
oath  that  the  thing  should  be  done  as  he  had  said.  Becket 
replied  as  firmly  that,  so  far  as  the  estates  of  the  Church 
were  concerned,  the  thing  should  not  be  done.  The 
records  of  the  period  do  not  make  clear  the  outcome  of 
this  quarrel,  but  it  is  inferred  that  the  barons  supported 
Becket,  and  that  the  King  was  compelled  to  recede  from 
his  position.! 

If  this  were  a  characteristic  meeting  of  the  Great  Coun- 
cil, all  that  has  been  previously  said  about  its  weakness 
would  be  disproved ;  for  if  the  spirit  manifested  in  1163 
had  been  its  usual  temper,  it  must  have  been,  as  an  insti- 
tution, an  important  check  upon  the  power  of  the  King. 
This  case,  however,  is  given  as  the  first  recorded  instance 
of  open  resistance  to  the  King  in  a  meeting  of  the  Council ; 
and,  in  spite  of  that  action,  Henry  continued  to  use  the 
Council  for  building  up  his  own  power.  The  barons,  who 
in  this  one  instance  sided  with  Becket  in  a  matter  of  com- 
1  Stubbs,  Constitutional  History,  Vol.  I.,  pp.  462,  463. 


CHAP.  XII      ROYAL  RULE  BY   MEANS   OF  COUNCIL  151 

mon  interest,  disliked  him  as  much  as  they  feared  the 
King.  The  King  immediately  summoned  another  Council, 
at  which  certain  barons,  in  accordance  with  his  request, 
presented  a  body  of  ancient  rules  to  regulate  the  relations 
of  the  Church  to  the  other  parts  of  the  government* 
These  rules  are  known  as  the  Constitutions  of  Clarendon. 
Becket  strenuously  opposed  the  enactments ;  yet  such  was 
the  power  of  the  united  forces  of  King  and  barons  in  the 
Council,  that  the  reluctant  Archbishop  was  finally  induced 
to  affix  his  seal  to  the  laws.  The  measure  to  which  he 
especially  objected,  was  that  requiring  appeals  from  eccle- 
siastical courts  to  be  made  to  the  King's  Court,  and  to  go 
no  farther  except  by  the  King's  consent.  This,  in  Beck- 
et's  mind,  placed  the  bishops  at  the  mercy  of  the  King. 
He  preferred  to  have  appeals  made  from  the  bishop's  court 
to  the  see  of  Rome.  The  stubborn  prelate  having  repudi- 
ated the  Constitutions  of  Clarendon,  the  King  caused  him 
to  be  summoned  to  another  Council,  where  charges  were 
brought  against  him,  and  he,  feeling  that  his  life  was  in 
danger,  fled  into  France. 

At  this  point,  it  seemed  that  the  King's  triumph  over 
the  Archbishop  was  complete.  A  few  years  later,  how- 
ever, Henry  TI.  was  involved  in  serious  difficulty  because 
of  his  efforts  to  have  his  oldest  son  Henry  crowned  and 
accepted  as  the  future  king.  To  assist  him  in  this  matter 
he  sought  a  reconciliation  with  Becket.  The  Archbishop 
returned  to  England,  but  he  came  not  as  a  friend,  as  the 
King  had  hoped.  He  excommunicated  the  Archbishop  of 
York  and  all  the  other  bishops  who  had  sided  with  the 
King  in  the  matter  of  crowning  his  son,  and  was  prepar- 
ing fully  to  vindicate  the  power  of  the  Church  against 
all  the  recent  innovations.  It  was  at  this  time  that 
Henry  uttered  the  angry  words  which  caused  his  too 
faithful  friends  to  hasten  to  Canterbury  for  the  murder  of 
Becket.     A  great  revulsion  of  feeling  against  the  Mon- 


152  GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xii 

arch  resulted  from  that  deed,  and  he  was  constrained  to 
make  friends  with  the  Pope.  In  doing  this,  he  renounced 
the  Constitutions  of  Clarendon.  Such  was  the  royal  power, 
however,  that,  notwithstanding  the  renunciation,  the  laws 
in  restraint  of  the  Church  were  for  the  most  part  still 
enforced. 

The  manner  of  the  death  of  Becket  furnished  the  occa- 
sion for  the  manifestation  of  a  force  which  in  later  years 
became  a  dominant  element  in  the  Constitution.  It  was 
the  force  of  public  opinion.  The  people,  who  from  the 
time  of  the  Conquest  had  been  more  inclined  to  look  to 
the  clergy  than  to  any  other  class  for  sympathy,  commonly 
believed  the  King  to  be  the  real  author  of  the  murder,  and 
Becket  was  at  once  regarded  as  a  martyr  and  a  saint. 
The  King,  while  he  took  care  not  to  lose  any  of  the  ad- 
vantages conferred  by  his  laws  restraining  the  Church, 
was  yet  led  to  show  great  deference  to  the  pious  senti- 
ments of  the  people  in  honour  of  their  martyred  hero. 

During  the  first  one  hundred  years  after  the  Conquest, 
there  was  no  time  when  the  great  lords  were  not  ready 
to  enter  upon  deeds  of  violence  and  rebellion  unless  re- 
strained by  the  strong  hand  of  the  King.  For  the  first 
decade  of  Henry's  rule,  while  Becket  was  his  efficient 
minister  and  supporter,  the  barons  were  kept  in  order 
by  the  power  of  the  King  supported  by  the  Church,  the 
lesser  lords,  and  the  people.  When,  therefore,  the  Sover- 
eign became  involved  in  a  quarrel  with  the  primate,  the 
great  barons  were  eager  to  destroy  the  man  who  had 
done  so  much  to  put  restraints  upon  themselves.  When 
the  King  had  become  unpopular  on  account  of  the  violent 
death  of  Becket,  and  when  his  power  was  seriously  threat- 
ened by  an  attack  of  his  son  Henry  supported  by  the 
King  of  France,  a  portion  of  the  barons  raised  in  England 
the  standard  of  rebellion. 

This  barons'  war  is  of   more   than   ordinary  constitu- 


CHAP.  XII       ROYAL  RULE   BY  MEANS  OF  COUNCIL  153 

tional  interest.  In  the  first  place,  it  is  the  last  of  the 
wars  against  the  King  led  by  French  barons.  There  were 
still  earls  and  barons  in  England  who  owned  possessions 
in  France,  and  in  this  revolt,  which  involved  only  the 
French  faction  of  the  English  nobility,  they  were  the 
leaders.  Next,  it  is  an  important  fact  in  constitutional 
history  that  when  the  leader  of  the  King's  cause  in  Eng- 
land was  at  his  wits'  end,  and  knew  not  what  to  do,  the 
royal  cause  was  saved  by  a  spontaneous  rising  of  the 
people  in  the  north  of  England  led  by  their  local  leaders.^ 
Finally,  the  King  was  so  strong  in  his  position  after  his 
double  triumph  over  the  French  king  and  his  own  rebel- 
lious lords  that  he  did  not  deem  it  necessary  to  punish 
the  rebels  in  any  other  way  than  by  still  farther  stripping 
them  of  power,  and  by  strengthening  the  administrative 
policy  whereby  that  power  was  permanently  restrained. 

A  view  of  the  government  of  England  at  the  close  of 
the  reign  of  the  first  Plantagenet  king  gives  us  almost 
nothing  to  suggest  the  present  English  Constitution  which 
did  not  also  exist  at  the  close  of  the  reign  of  the  first 
Norman  king.  In  other  words,  the  characteristic  feat- 
ures of  the  Constitution  of  to-day  were  still  absent  from 
the  government  of  England.  For  example,  political  par- 
ties in  the  modern  sense  of  the  term  did  not  exist.  In 
their  place  were  political  classes  contending  for  class 
privileges.  There  had  been  manifestations  of  public  opin- 
ion strong  enough  to  influence  the  policy  of  the  govern- 
ment,— notably  in  the  case  of  the  martyrdom  of  Becket, 
—  but  public  opinion  had  then  no  organ  of  expression. 
The  appearance  of  earls  and  barons  with  sympathies  dis- 
tinctly English,  pitted  against  earls  and  barons  whose 
sympathies  were  still  French,  has  suggested  the  possibil- 
ity that  class  faction  might  lead  to  party  divisions.  But 
the  fact  that  needs  emphasis  at  this  point  is  the  complete 
1  Stubbs,  Constitutional  History,  Vol.  I.,  p.  480. 


154  GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xn 

non-existence  of  political  parties.  Let  it  be  specially  re- 
membered, also,  that  there  did  not  exist  any  national  rep- 
resentative institution  according  to  the  modern  use  of  the 
words.  The  Great  Council  may,  indeed,  be  called  in  some 
sense  a  national  institution.  But  the  modern  representa- 
tive idea  is  based  upon  the  conscious  right  of  the  people 
to  be  represented,  and  representation  in  this  sense  cannot 
exist  before  public  opinion  becomes  influential.  Undoubt- 
edly there  were  dignitaries  in  both  Church  and  State  who 
felt  that  a  slight  had  been  put  upon  them  if  they  were  not 
summoned  in  the  ordinary  way  to  the  meetings  of  the 
Great  Council.  Such  a  slight,  however,  was  viewed  as  a 
violation  of  privilege,  rather  than  as  a  violation  of  a  funda- 
mental principle  of  the  Constitution.  The  Great  Council 
simply  furnished  a  practical  way  for  doing  a  thing  which 
had  to  be  done.  The  King  was  obliged  to  come  into 
working  relations  with  the  organs  of  the  government, 
and  the  Great  Council  was  an  agency  for  effecting  this. 

It  is  easy  to  find  in  the  body  of  administrative  and 
judicial  officers  created  by  Henry  I.,  and  more  fully  or- 
ganized by  Henry  II.,  a  suggestion  of  a  modern  Ministry. 
The  justiciar  who  acted  as  regent  during  the  time  when 
the  King  was  absent  upon  the  Continent,  and  who  pre- 
sided both  at  the  council  table  of  the  Exchequer  and 
at  the  meetings  of  the  same  high  officers  when  they  sat 
as  a  supreme  court,  may  suggest  a  modern  prime  min- 
ister ;  but  there  is  in  reality  little  resemblance  between 
the  two.  As  the  judicial  functions  of  the  Council  were 
the  first  to  be  specialized,  the  justiciar  became  in  time  the 
Chief  Justice,  and  was  thus  removed  from  the  field  of 
administration.  The  distinctively  administrative  offices 
grew  up  finally  around  the  treasury.  Much  progress 
had  therefore  been  made  by  the  time  of  the  death  of 
Henry  II.,  in  1187,  in  respect  to  the  development  of  per- 
manent j.udicial  and  administrative  institutions,  and  those 


CHAP.  XII       ROYAL  RULE   BY  MEANS   OF   COUNCIL  165 

institutions  became  themselves  important  factors  in  the 
further  development  of  the  modern  Constitution. 

Some  positive  resemblance  to  the  later  Constitution 
may  be  found  in  the  fact  that  the  dominant  forces  of  the 
government  were  divided  and  balanced  one  against  an- 
other. No  one  of  the  four  great  political  powers  was 
permitted  to  be  crushed  out.  Each  was  needed  as  a  pro- 
tection against  the  encroachments  of  the  others.  Thus, 
while  there  was  little  in  the  actual  government  of  Henry 
II.  which  answers  directly  to  the  modern  Constitution, 
there  were  certain  features  of  his  policy  which  had  much 
to  do  with  its  development.  A  brief  review  of  these  may 
be  helpful. 

The  narrative  of  the  resistance  to  the  King  on  the  part 
of  Thomas  Becket,  supported  by  the  barons,  in  a  matter 
of  taxation,  is  of  interest  simply  as  an  early  instance  of  a 
kind  of  contention  which  in  later  times  had  much  to  do 
with  constitutional  development.  Henry  instituted  a  sort 
of  tax  which  had  a  more  immediate  effect  upon  the  domi- 
nant powers  of  the  government.  It  was  called  the 
scutage,  or  shield  mone}^  This  was  a  payment  to  the 
King  of  a  sum  of  money  in  lieu  of  the  personal  service 
which  the  lords  were  bound  to  render  the  King  in  time 
of  war.i  Henry  often  waged  war  upon  the  Continent 
to  defend  his  feudal  possessions,  and  his  English  vassals 
did  not  like  to  go  abroad  for  such  a  purpose.  They 
agreed,  therefore,  to  pay  money  instead  ;  and  the  King 
could  use  the  money  to  employ  mercenaries  for  his  con- 
tinental enterprises.  This  policy,  begun  by  Henry  II., 
was  continued  by  other  sovereigns,  and  tended  to  make 
them  less  dependent  upon  the  feudal  lords. 

Again,  Henry  made  provision  for  more  thoroughly 
arming  and  drilling  the  fyrd,  or  national  army,  under 
officers  appointed  by  the  King.  We  have  seen  that  this 
1  Stubbs,  Constitutional  History,  Vol.  I.,  pp.  454,  456. 


156  GROWTH  OF  THE   ENGLISH  CONSTITUTION    chap,  xii 

army  had  been  of  great  value  to  the  kings  in  their  contests 
with  the  barons.  Many  times  the  prompt  action  of  the 
English  army  under  their  local  leaders  had  been  the  de- 
termining factor  in  securing  a  royal  triumph  over  turbu- 
lent barons.  Henry  recognized  this  force,  and  made  it 
still  more  effective. 

Further,  the  sending  of  justices  from  his  Curia  Regis  to 
hold  courts  in  the  counties^  did  much  to  consolidate  the 
entire  government,  and  cause  the  local  governments  to 
contribute  to  the  support  of  the  Crown.  At  one  time  the 
King  summarily  removed  all  the  sheriffs,  and  required 
them  to  place  their  accounts  in  the  hands  of  his  Council, 
requiring  the  members  of  the  Council  to  administer  for  a 
time  the  offices  of  the  sheriffs  in  all  the  counties.  When 
he  suspected  that  the  members  of  the  Council  might  be 
open  to  charges  of  irregularity,  he  required  them  to  sur- 
render their  accounts  to  a  special  commission  of  barons 
appointed  for  the  purpose.  There  is  no  doubt  that  this 
thorough-going  administrative  system  did  much  to  con- 
vince the  barons  that  it  was  useless  to  contend  against 
the  King  unless  they  could  first  win  the  support  of  the 
people. 

Finally,  no  one  king  did  more  than  Henry  II.  to  insure 
the  continuity  of  those  customs  which  resulted  in  the 
establishment  of  the  jury  system. ^  It  is  probable  that 
something  of  the  representative  idea  was  always  associated 
with  the  ancient  customs  from  which  the  jury  is  derived. 
When  the  jury  accused  a  person  of  a  crime,  there  was 
probably  associated  with  the  act  the  notion  that  through 
and  by  means  of  it  the  community  itself  was  speaking. 
When  a  dispute  was  settled  by  the  witness  of  chosen  men, 
the  decision  presumably  carried  with  it  the  notion  that 

1  Gneist,  The  English  Parliament,  p.  72. 

^  See  discussion  of  the  jury  by  Stubbs,  Constitutional  History,  Vol.  I., 
p.  609  et  seq.  ;  by  Medley,  English  Constitutional  History,  p.  321  et  seq. 


CHAP.  XII       ROYAL  RULE  BY  MEANS  OF  COUNCIL  15? 

the  witnesses  voiced  the  sentiment  of  the  disturbed  com- 
munity. When  an  inquest  of  twelve  made  a  valuation  of 
property  which  should  serve  as  the  basis  for  the  assess- 
ment and  the  payment  of  taxes,  there  %vas  associated  with 
the  act  the  notion  that  the  community  was  bound  by  it. 
Henry's  judicial  and  fiscal  policy  involved  an  extended 
use  of  these  juries  as  spokesmen  of  the  communities. 

Immediately  after  the  death  of  Henry  II.  his  adminis- 
trative policy  was  subjected  to  a  severe  test.  Richard  I. 
and  John  were  both  thoroughly  bad  and  tyrannical  kings. 
Nevertheless  it  required  over  twenty  years  of  tyranny  to 
stir  up  enough  opposition  really  to  threaten  the  hold  of 
the  Crown  upon  the  administrative  agencies  which  their 
predecessor  had  established.  Certain  enactments  which 
bear  the  date  of  1194,  five  years  after  Henry's  death, 
belong  in  fact  to  his  policy,  since  they  were  adopted  by 
statesmen  trained  in  his  school,  and  were  strictly  in  line 
with  the  work  already  done.  By  these  the  justices  from 
the  Curia  Regis  were  required  to  take  an  oath  of  the 
peace  from  all  the  people  who  attended  the  local  courts, 
and  to  appoint  conservators  of  the  peace  whose  duty  it 
was  to  keep  the  peace  in  the  King's  name.  At  the  same 
time,  the  relations  of  the  juries  to  the  county  court  were 
more  clearly  defined.  The  constitutional  importance  of 
these  measures  may  be  seen  in  their  tendency  to  harmo- 
nize the  King's  courts  and  the  local  courts,  and  thus  to 
strengthen  the  power  of  the  Crown.  In  course  of  time 
these  conservators  of  the  peace,  under  the  name  of  Justices 
of  the  Peace,  came  to  exercise  many  of  the  judicial  and  ad- 
ministrative functions  which  had  previously  belonged  to 
the  local  and  more  popular  courts,  thus  giving  still  more 
emphasis  to  the  jury  system  as  the  sole  representative  insti- 
tution which  brought  the  people  into  direct  contact  with 
important  governmental  business. 


CHAPTER  XIII 

MAGNA  CHARTA 

rriHE  next  great  landmark  in  the  development  of  the 
-*-  English  government,  after  the  completion  of  the  ad- 
ministrative system  of  Henry  II.  was  the  signing  of  Magna 
Charta.  It  is  not  an  easy  matter  to  read  Magna  Charta  or 
any  other  ancient  law  with  true  historical  circumspection. 
It  is  well  known  that  Mr.  Freeman  was  wont  to  criticise 
the  historical  work  of  lawyers.  But  historians  who  can- 
not be  convicted  of  any  of  the  lawyer's  bias  are  not  them- 
selves agreed  in  the  adjustment  of  ancient  laws  to  their 
historical  relations.  There  is  a  strong  probability  that 
lawyers  and  historians  alike,  as  well  as  laymen  of  every 
class,  are  very  commonly  the  victims  of  erroneous  theories 
in  their  interpretations  of  ancient  laws. 

No  attempt  is  here  made  to  give  to  Magna  Charta  its 
true  historical  setting.  The  task  undertaken  is  simply 
that  of  showing  very  briefly  how  the  contests  connected 
with  the  Charter  changed  the  relative  positions  of  the 
dominant  classes  in  England. 

Weighty  evidence  may  be  adduced  to  prove  that  laws 
usually  contain  much  that  is  controversial  in  its  nature. 
Even  in  the  most  settled  governments  of  modern  times 
many  laws  indicate  a  striving  rather  than  an  attain- 
ment. If  the  United  States  should  be  blotted  out  of 
existence,  and  if  a  thousand  years  from  now  the  volumes 
containing  the  state  and  federal  constitutions  should  be 

158 


CHAP,  xm  MAGNA  CHARTA  159 

recovered  as  a  sole  relic,  it  would  appear  that  the  southern 
states  were  conspicuous  in  their  opposition  to  duelling, 
because  in  their  constitutions  are  found  most  numerous 
restrictions  upon  that  crime.  It  would  also  appear  that 
the  eleven  southern  states  which  formed  the  Confederacy 
were  conspicuous  opponents  of  the  doctrine  of  the  right 
of  secession,  because  in  the  constitutions  of  those  states 
alone  is  found  explicit  denial  of  the  right  of  a  state  to 
secede  from  the  Union.  If  these  things  can  be  justly- 
said  of  the  settled  governments  of  to-day,  it  is  not  un- 
reasonable to  suppose  that  the  laws  of  the  Middle  Ages 
contained  much  that  was  controversial ;  much  that  ex- 
pressed a  hope  rather  than  an  attainment ;  much  that  was 
intended  to  deceive  and  outwit  the  ignorant  and  the  help- 
less ;  much  that  at  the  time  was  in  appearance  a  treaty  of 
peace  when  it  was  in  reality  intended  as  a  basis  for  war. 
Magna  Charta  has  certainly  the  appearance  of  a  treaty  of 
peace  ;  but  upon  closer  study  evidence  appears  that  it  was 
at  the  time  intended  as  a  basis  of  war. 

It  should  be  borne  in  mind  that  the  Charter  was  signed 
after  ten  years  of  earnest  strife  during  which  time  John 
had  incurred  the  enmity  and  the  distrust  of  all  classes  in  his 
kingdom.  After  the  defeat  of  the  barons  in  the  time  of 
Henry  II.  they  had  come  to  realize  that  a  contest  against 
the  King  was  hopeless  so  long  as  he  had  the  loyal  sup- 
port of  the  trained  English  soldiers ;  and  there  is  much 
reason  to  believe  that  they  had  learned  to  appreciate  the 
necessity  of  winning  for  themselves  the  favour  of  the 
people.  Early  in  John's  reign  he  had  been  driven  from 
France  by  the  French  king,  and  his  French  possessions 
had  been  seized.  This  had  the  effect  still  further  to 
impress  upon  the  barons  the  importance  of  making  peace 
with  the  ruling  powers  in  England.  If  any  were  dis- 
posed to  contend  for  their  French  possessions,  they  could 
do  so  only  at  the  cost  of  imperilling  their  possessions  in 


160         GROWTH  OF  THE   ENGLISH  CONSTITUTION    chap,  xiii 

England.  John  was  as  bad  a  king  as  could  well  be.  He 
had,  moreover,  the  faculty  of  impressing  all  classes  with 
the  belief  that  he  was  a  thoroughly  dangerous  man. 

The  contest  which  resulted  in  the  Charter  began  with 
the  Church.  The  Archbishop  of  Canterbury  died  in  1205, 
-and  the  younger  monks  of  the  cathedral  secretly  elected 
a  successor,  whom  they  sent  abroad  to  receive  the  badge 
of  office  from  the  Pope.  When  this  became  known,  the 
elder  monks,  in  alarm,  reported  the  matter  to  the  King, 
and  he  ordered  them  to  elect  in  his  presence  an  arch- 
bishop who  was  at  once  invested  with  the  temporal- 
ities of  the  office,  while  a  statement  of  what  had  been 
done  was  sent  to  the  Pope.  Then  the  bishops,  who  had 
been  denied  their  customary  share  in  the  selection  of  the 
primate,  appealed  to  the  Pope  to  vindicate  their  right. 
There  thus  appeared  before  the  Pope  three  parties  :  first, 
the  younger  monks  with  their  nominee  ;  second,  the  elder 
monks  who  had  at  the  command  of  the  King  selected  his 
nominee ;  third,  the  bishops  of  the  province,  who  claimed 
the  right  of  nomination.  The  Pope,  having  a  plan  of  his 
own,  decided  that  the  elder  monks  had  the  right  to  nomi- 
nate, but  that  their  first  action  was  irregular.  He  there- 
fore ordered  the  monks  who  were  present  in  Rome  then 
and  there  to  name  Stephen  Langton  as  Archbishop  of 
Canterbury.  Stephen  was  thus  chosen,  and  was  at  once 
consecrated  by  the  Pope  to  the  office. 

John  was  in  a  rage  at  what  was  done,  and  wreaked  his 
vengeance  upon  the  monks.  The  Pope  placed  the  land 
under  an  interdict,  and  John  took  vengeance  upon  the 
bishops  who  published  the  Pope's  decree,  driving  them 
out  of  the  land  and  seizing  their  estates. 

The  barons  could  look  on  with  equanimity  while  they 
saw  their  old  enemies  the  bishops  being  stripped  of  their 
possessions,  but  John  did  not  limit  his  attacks  to  any 
class.     Upon  one  pretext  and  another  he  seized  the  estates 


CHAP.  XIII  MAGNA  CHARTA  161 

of  the  barons  as  well.  The  Pope,  following  the  course  of 
events  in  England,  in  due  time  excommunicated  John. 
In  1211  he  threatened  to  depose  him,  and  appointed  Philip 
of  France  as  the  executor  of  the  edict.  John,  finding  that 
he  could  rely  upon  no  class  in  England,  hastened  to  make 
his  peace  with  the  Pope.  Stephen  Langton  was  acknow- 
ledged as  Archbishop,  and  John  yielded  to  all  the  papal 
demands,  even  to  surrendering  his  crown  and  receiving  it 
back  as  the  Pope's  vassal.  His  intention  was  to  use  the 
power  of  the  Pope  in  enabling  him  to  triumph  over  his 
enemies  in  England  and  France.  In  England  those 
enemies  were  all  classes  of  the  English  people.  Stephen 
Langton  and  the  clergy  made  common  cause  with  the 
barons,  the  lesser  nobility,  and  all  those  who  had  influence 
in  towns,  cities,  counties,  hundreds,  and  parishes,  to  re- 
strain the  action  of  the  King.  In  1213  a  meeting  of  the 
Council  was  held  at  St.  Albans  attended  by  representa- 
tives from  the  townships  on  the  royal  estates.  These 
were  called  to  act  as  a  jury  to  assess  certain  damages 
which  the  King  had  agreed  to  pay  to  the  bishops.  At 
this  meeting  were  formulated  measures  of  reform  to  be 
demanded  of  the  King.  In  the  same  year,  at  a  meeting  of 
barons  and  clergy  held  in  St.  Paul's  Church,  in  London, 
Stephen  Langton  presented  a  copy  of  the  charter  of 
Henry  I.,  which  was  accepted  as  the  basis  of  the  de- 
mands to  be  made  upon  the  King.  A  year  now  inter- 
vened, during  which  time  the  King  was  engaged  in  an 
unsuccessful  war  against  the  King  of  France. 

In  June,  1215,  the  King's  situation  had  become  desperate. 
He  was  threatened  with  an  invasion  by  the  King  of  France. 
The  barons,  backed  by  an  army  of  determined  English- 
men, had  openly  defied  him.  Archbishop  Langton  had 
threatened  to  excommunicate  any  baron  who  should  take 
part  with  the  King  in  opposition  to  the  nobles.  The  city 
of  London  had  received  the  army  of  the  barons.     Nothing 


162         GROWTH  OF  THE   ENGLISH  COI^STITUTION    chap,  xiii 

was  left  for  John  but  to  surrender  or  be  conquered.  A 
meeting  was  arranged  for  the  King  with  his  army,  and  the 
barons  with  their  army,  on  the  plains  of  Runnymede,  to 
agree  upon  the  terms  of  the  surrender.  The  terms  agreed 
upon  are  preserved  in  Magna  Charta.  By  the  signing  of 
the  Charter,  John  escaped  personal  violence  for  the  time. 
His  enemies  could  not  have  foreseen  that  he  would  die 
soon  after  that  act.  There  is  no  reason  to  believe,  or 
rather  there  are  the  best  of  reasons  for  not  believing, 
that  the  barons  expected  this  treaty  to  relieve  them  from 
the  duty  of  fighting  against  the  King.  They  all  knew 
that  the  signing  of  the  Charter  would  not  make  John 
trustworthy.  The  naming  of  twenty-five  of  their  mem- 
bers, of  whom  the  mayor  of  London  was  one,  to  make  war 
upon  the  King  and  compel  him  to  observe  the  Charter, 
was  by  no  means  a  mere  form.  More  probably  this  ex- 
pressed their  immediate  expectation.  The  Charter  would 
but  make  the  grounds  of  warfare  a  little  more  definite. 

If  a  constitution  has  for  its  chief  object  the  prevention 
of  encroachments  and  the  harmonizing  of  governmental 
institutions,  Magna  Charta  answers  to  that  description,  at 
least  in  part.  It  was  certainly  intended  to  harmonize  for 
the  time  being  the  greater  and  the  lesser  nobility,  the 
clergy,  and  the  influential  classes  among  the  English 
people.  For  a  hundred  and  fifty  years  these  classes  had 
been  jealous  of  each  other.  Kings  good  and  bad  had  been 
able  to  play  one  class  against  another,  and  thus  to  shield 
themselves  and  to  increase  their  power  at  the  expense  of 
others.  The  Charter  was  evidently  designed  to  secure 
greater  harmony  between  the  three  classes,  the  clergy,  the 
nobihty,  and  the  people,  who  were  traditionally  jealous 
and  hostile,  and  it  could  do  this  only  by  conveying  the 
idea  that  encroachments  upon  their  privileges  were  to  be 
prevented.  But  was  the  Charter  intended  to  harmonize 
the  Crown  with  the  other  ao^encies  of  government  ?     This 


CHAP,  xin  MAGNA  CHARTA  163 

question  is  already  answered.  It  is  only  by  what  would 
seem  to  be  a  strained  interpretation  of  the  word  "har- 
mony "  that  the  Charter  can  be  said  to  harmonize  the  Crown 
and  the  nation.  Making  war  upon  the  King  does  not,  to 
the  view  of  a  modern  citizen,  seem  to  be  a  legitimate  and 
constitutional  method  of  harmonizing  governmental  agen- 
cies. It  will  help  us  to  understand  the  facts  of  the  period 
if  we  see  clearly  that  to  the  mind  of  the  subject  in  the 
time  of  John  this  appeared  altogether  different.  Making 
war  upon  the  King  was  then  looked  upon  as  the  customary, 
the  regular,  the  orderly,  and  according  to  the  Charter  it 
became,  the  legal  way  of  restraining  the  King.  In  that 
sense  the  Charter  did  provide  in  express  terms  for  harmon- 
izing the  Crown  and  the  nation  by  the  only  method  known 
at  the  time.  That  is,  it  named  those  who  should  lead  the 
nation  in  a  war  upon  the  King  in  case  he  violated  the 
terms  of  the  agreement.  Yet  it  is  more  conformable  to 
modern  usage  to  say  that,  so  far  as  the  King  is  concerned, 
the  Charter  was  intended  to  limit  his  power  and  to  pre- 
vent him  from  making  encroachments. 

Stephen  Langton  is  by  common  consent  the  hero  of  this 
period.  Magna  Charta  was  two  years  or  more  in  prepa- 
ration, and  there  were  doubtless  frequent  consultations 
with  representatives  of  the  various  classes  affected.  It  is 
probable  that  every  sentence  in  the  charter  touches  some 
sore  spot  in  the  working  of  the  government,  and  was 
designed  to  conciliate  an  influential  class.  There  is  no 
evidence  that  any  one  who  had  anything  to  do  with  the 
formulation  of  the  document  was  a  victim  of  any  general 
theory  of  the  rights  of  man,  or  any  general  theory  as  to 
how  a  government  ought  to  be  organized  and  admin- 
istered. From  beginning  to  end  the  Charter  is  a  catalogue 
of  promises  that  specific  injurious  practices  should  cease, 
and  that  older  and  better  ways  should  be  followed. 

The  Great  Charter  expressly  confirmed  all  the  privi- 


164         GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xiii 

leges  granted  in  a  charter  which  the  Church  had  previ- 
ously received.  The  King's  feudal  tenants  had  suffered 
divers  abuses  and  hardships.  These  and  the  correspond- 
ing abuses  suffered  by  the  tenants  of  the  lords  were  to 
cease.  The  Great  Council,  as  the  older  administrative 
agency  for  apportioning  taxes  and  collecting  them,  had 
been  displaced  in  the  time  of  Richard  and  John  by  new 
administrative  agents.  Hence  we  have  the  statement 
that  taxes  were  hereafter  to  be  voted  in  full  Council. 
The  lesser  baronage  and  the  freemen  had  much  reason  to 
fear  that  if  the  government  came  into  the  hands  of  lords 
and  bishops  they  would  be  deprived  of  the  judicial  and 
administrative  favours  which  they  had  enjoyed  under  the 
system  of  Henry  II.  Much  of  the  Charter  is  fitted  to 
remove  this  fear.  The  King's  courts  and  the  various  uses 
of  the  juries  were  to  be  continued.  The  city  of  London 
and  other  towns  and  cities  were  to  continue  in  possession 
of  their  accustomed  privileges.  The  hand  of  the  King 
had  been  heavy  in  the  execution  of  forest  regulations,  and 
these  laws  are  modified. 

Viewed  in  one  way,  the  document  is  eminently  prac- 
tical. Each  sentence  had  in  view  the  immediate  practical 
object  of  securing  the  cooperation  of  some  particular  in- 
fluential class  with  the  several  other  aggrieved  classes  in 
opposition  to  the  King.  For  such  a  purpose  the  docu- 
ment must  be  brief  and  void  of  detail.  The  classes  who 
must  needs  work  together  had  habitually  been  at  enmity. 
If  they  were  now  to  work  in  harmony,  troublesome  details 
must  be  left  out  of  account.  Like  the  platforms  of  a 
modern  political  party.  Magna  Charta  of  necessity  ignored 
many  important  subjects,  and  fastened  attention  only 
upon  objects  of  common  antipathy  and  desire.  It  is  this 
brevity,  this  absence  of  detail,  this  indefiniteness  in  some 
of  the  terms  used,  and  especially  the  indefiniteness  of  some 
of  the  classes  to  which  the  terms  refer,  that  has  made  it 


CHAP,  xm  MAGNA  CHARTA  166 

easy  to  read  out  of  or  to  read  into  Magna  Charta  all  the 
ideal  principles  of  government  which  have  been  discov- 
ered in  the  succeeding  centuries. ^  The  Charter  appears  in 
its  terms  to  be  made  for  freemen.  Yet  it  is  probable  that 
half  of  the  English  people  of  that  day  were  not  freemen. ^ 
It  is  also  probable  that  no  man  living  at  the  time  under- 
stood the  word  "freeman"  as  it  is  used  in  recent  times. 
There  were  probably  a  large  number  of  persons  who  could 
not  be  classified  either  as  free  or  not  free.  Freedom  has 
grown  by  solving  doubts  in  favour  of  freedom.  The 
amplification  of  rights  has  coincided  with  an  amplified 
interpretation  of  the  charter. 

It  requires  a  peculiar  construction  to  get  out  of  the 
Charter  the  advanced  principles  of  taxation  by  the  repre- 
sentatives of  those  who  pay  the  taxes.  Yet  this  has  been 
done.  Henry  II.  constantly  used  the  Great  Council  to 
form  and  publish  his  policies  and  to  adopt  the  means  of 
carrying  them  into  effect.  Richard  and  John  had  fre- 
quently used  other  agencies.  The  Charter  is  understood 
to  state  that  the  method  of  Henry  II.  should  be  followed. 
In  after  centuries  the  Council  became  a  truly  representa- 
tive body,  and  the  interpretation  of  the  Charter  has  nat- 
urally enough  followed  the  changing  facts. 

The  Charter  makes  frequent  use  of  the  word  "liberty," 
which  meant  in  these  early  days  merely  the  privilege  of 
a  certain  class,  or  of  certain  classes ;  while,  as  used  in 
modern  times,  the  word  expressly  denies  privileges  or 
exemptions  to  any  class,  and  affirms  the  common  rights 
of  all  men.  Mr.  Gardiner  quotes  a  passage  in  which 
this  contrast  of  meanings  is  emphasized.      A  town  was 

1  *'The  whole  of  the  constitutional  history  of  England  is  a  commen- 
tary on  this  charter."     Stubbs,  Select  Charters,  p.  296. 

2  The  condition  of  the  people  is  fully  treated  by  Ashley,  Economic 
History,  Bk.  I.,  Chap.  I.,  and  Medley,  English  Constitutional  History ^ 
Chap.  I. 


166         GROWTH  OF   THE   ENGLISH  CONSTITUTION    chap,  xiii 

anxious  to  preserve  its  ancient  liberty  to  put  culprits  into 
the  stocks.  Along  with  the  broadening  of  the  term  "  free- 
man "  so  as  to  make  it  include  all  the  people,  has  come 
the  imperceptible  elimination  of  the  idea  of  privilege  from 
the  word  "  liberty."  In  this  way  Magna  Charta  being  in 
its  origin  a  charter  of  privileges,  has  become  the  Great 
Charter  of  Liberty. 

It  is  impossible  to  determine  all  that  the  makers  of 
Magna  Charta  intended  to  accomplish.  The  document 
was  especially  noteworthy  in  that  it  set  forth  in  order 
so  complete  a  catalogue  of  the  ills  of  government 
and  the  grievances  of  the  governed.  As  the  people 
of  the  present  day  cherish  an  exaggerated  notion  of 
the  immediate  effects  of  novelties  in  legislation,  it  is 
not  unreasonable  to  suppose  that  some  of  the  makers  of 
the  Charter  may  have  actually  entertained  the  absurd 
notion  that  the  adoption  of  it  would  result  in  harmonizing 
the  various  classes  who  had  been  at  enmity.  They  may 
even  have  thought  that  when  the  King  had  been  suf- 
ficiently coerced  by  the  barons  appointed  for  the  purpose, 
he  would  become  transformed  in  character,  and  thus  all 
the  agencies  of  government  would  be  harmonized.  Of 
course,  any  such  result  was  out  of  the  question.  The 
conflicting  interests  were  not  changed.  The  Church  still 
had  occasion  to  be  jealous  of  the  barons.  The  interests 
of  the  lesser  nobility  were  often  at  variance  still  with 
those  of  the  higher  nobility.  The  privileges  of  towns  and 
cities  could  be  maintained  only  by  constant  conflict.  The 
masses  of  the  people,  although  they  were  the  creators  of 
the  wealth  upon  which  the  warring  classes  subsisted,  and 
furnislied  the  brute  force  which  was  a  determining  factor 
in  the  strife  of  the  warring  classes,  were  not  yet  regarded 
as  dangerous.  It  was  difficult  to  make  the  ignorant  popu- 
lace change  their  customs  at  all ;  but  if  they  did  change, 
the  conditions   were   such   that   the   change  was   almost 


CHAP.  XIII  MAGNA  CHARTA  167 

invariably  in  the  direction  of  their  own  interests.  They 
Avould  work  best  and  fight  hardest  for  those  who  treated 
them  best.  Those  who  gained  the  support  of  the  masses 
prospered  in  their  contests  until  such  a  time  as  the 
masses  themselves  got  a  mind  of  their  own  and  came  to 
be  recognized  as  dangerous  to  the  ruling  classes. 

It  does  not  follow  that,  because  the  immediate  purpose 
of  the  makers  of  the  Charter  was  impossible  of  accomplish- 
ment, the  effect  of  the  act  was  therefore  not  great,  imme- 
diate, and  permanent.  It  is  because  men  have  ever  been 
found  who  were  willing  resolutely  to  set  themselves  to 
the  accomplishment  of  that  which,  for  the  time  being, 
was  impossible,  that  progress  in  human  liberty  has  been 
made  possible.  It  was  fortunate  that  John  died  before 
he  had  time  to  break  the  league  with  his  subjects.  It  was 
fortunate  that  Stephen  Langton  lived  for  more  than  half 
a  political  generation  after  the  death  of  John,  and  that  he 
succeeded  in  making  peace  with  the  Pope,  so  that  the  un- 
divided forces  of  the  Church  could,  under  the  Archbishop's 
wise  direction,  be  used  in  the  effort  to  harmonize  the 
working  of  the  league  of  the  citizens  against  the  Crown. 
It  was  fortunate  that  during  the  whole  of  Lang  ton's  life 
after  the  death  of  John,  England  had  a  boy  for  a  king,  and 
that  the  government  was  in  the  hands  of  a  regency.  For 
the  first  time  since  the  Conquest  the  people  enjoyed  an 
orderly,  customary  administration  of  the  laws  at  the  hands 
of  others  than  the  King. 

The  question  may  be  asked.  If  the  Charter  could  suc- 
cessfully regulate  the  working  of  the  government  for  fif- 
teen years,  why  was  it  impossible  as  a  permanent  scheme 
of  government?  The  answer  is.  Simply  because,  in  the 
natural  course  of  events,  so  many  fortunate  circumstances 
do  not  often  coincide.  So  soon  as  the  people  were  per- 
mitted again  to  feel  the  hand  of  a  king,  they  experienced 
a  less  orderly  and  a  more  tyrannical  and  irregular  govern- 


168        GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xni 

ment  than  that  of  the  regency.  And  yet,  looking  back 
down  the  long  vista  of  history,  it  may  even  be  seen  that 
this  too  was  among  the  favouring  circumstances  which 
have  together  accelerated  the  growth  of  English  liberties ; 
that  it  was  well  for  England .  that  the  first  sovereign  to 
make  his  hand  felt  by  his  subjects  after  the  establishment 
of  the  famous  compact  between  the  classes,  was  a  tyrant 
with  foreign  notions  and  sympathies,  estranged  from  his 
own  people. 


CHAPTER  XIV 

THE  POWER  OP  THE  CROWN  REGAINED  BY  MEANS  OF 
PARLIAMENT 

nrTENRY  III.  declared  himself  of  age  in  1227.  Dur- 
-■— L  ing  the  five  years,  following,  the  King  and  the  up- 
holders of  the  Great  Charter  were  at  strife.  In  1232 
Henry  put  himself  into  the  hands  of  foreigners,  and  for 
twenty-six  years  a  tyranny  was  maintained.  At  the  end 
of  this  time  the  opposition  to  the  Monarch  had  become 
again  so  consolidated  as  to  be  able  successfully  to  with- 
stand him  for  a  few  years.  But  he  again  prevailed  over 
his  enemies,  and  closed  his  reign  in  triumph  in  1272. 

During  the  years  of  tyranny  the  King  was  supported  by 
the  Pope.  After  the  death  of  Stephen  Langton  a  compact, 
or  conspiracy,  against  the  English  tax-payers  was  formed 
on  the  part  of  the  King  and  the  Pope.  The  laity  were 
able  successfully  to  resist  some  of  the  exactions  which 
resulted ;  but  the  clergy,  not  having  the  support  of  the 
King  or  of  the  barons,  were  powerless  against  the  Roman 
pontiff.  After  a  few  years,  in  1237,  a  special  legate  was 
sent  from  Rome  to  extort  money  from  the  English  people. 
The  clergy  allowed  their  old  jealousy  to  deter  them  from 
giving  effective  support  to  the  barons.  It  was  not  until 
the  clergy  had  been  made  to  suffer  many  things  at  the 
hands  of  King  and  Pope,  that  they  were  again  induced  to 
make  common  cause  with  the  barons  in  opposition  to  their 
sovereign. 


170         GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xiv 

The  great  difficulty  in  the  way  of  those  who  would 
restrain  the  King  was  to  compel  him  to  observe  the  laws. 
The  various  charters,  and  especially  the  Great  Charter, 
were  understood  to  require  good  government,  yet  the 
King  appointed  both  those  who  administered  the  laws  and 
those  who  decided  cases  arising  under  the  laws.  The 
provision  of  the  Charter  appointing  twenty-five  barons 
to  make  war  upon  the  King  in  case  he  refused  to  observe 
the  Charter,  was  omitted  from  the  document  as  it  was 
ratified  and  published  by  Henry  III.  The  popes,  ever 
opposed  to  the  Charter,  were  ready  to  relieve  the  King 
from  the  oath  requiring  its  observance.  It  was  found 
to  be  comparatively  easy  to  persuade  the  King  to  promise 
to  obey  the  charters,  but  it  was  exceedingly  difficult  to 
get  him  to  keep  the  promise.  After  many  years  of 
tyranny  the  barons  and  the  clergy  in  the  Great  Council 
were  led  to  demand  that  they  should  be  allowed  to 
control  the  appointment  of  the  King's  ministers.  This 
demand  was  at  the  time  revolutionary,  and,  as  a  matter 
of  course,  the  King  would  not  yield  to  it. 

Finally,  in  1258,  all  efforts  to  restrain  the  King  and 
the  Pope  having  failed,  the  barons  and  the  clergy  having 
become  one  in  sentiment  through  the  sympathy  created 
by  a  common  suffering,  the  Great  Council,  which  had  now 
come  to  be  called  Parliament,^  met  at  Oxford.  The 
barons  came  with  an  army  to  coerce  the  King.  When 
the  barons  met  John  under  similar  conditions,  they  ex- 
hausted their  demands  in  Magna  Charta.  Experience 
had  convinced  all  who  could  observe  that  something 
more  than  charters  was  now  needed.  The  Parliament 
at  Oxford  made  a  rude  attempt  to  create  such  agencies 
for  administering  the  government  as  would  effectually  re- 
strain the  King.     A  few  months  before,  Henry  had  been 

1  William  Prynne,  On  the  Fourth  Part  of  the  Institutes  of  the  Lawes  of 
England,  1669,  p.  2. 


CHAP.  XIV      THE  POWER   OF   THE   CROWN  REGAINED  171 

induced  to  consent  to  the  appointment  of  a  committee 
of  twenty-four,  twelve  of  his  own  party  and  twelve  of 
the  party  of  the  barons,  to  adopt  measures  for  restoring 
order.  This  committee  of  twenty-four  made  a  report  to 
the  Parliament  at  Oxford,  which,  having  been  adopted,  be- 
came known  as  the  Provisions  of  Oxford.  These  required 
that  a  body  of  fifteen  councillors  should  be  appointed  to 
advise  the  King  in  matters  of  government,  and  forbade 
him  to  act  except  upon  their  advice.  The  committee  of 
twenty-four  was  continued,  and  the  offices  of  State  were 
required  to  be  filled  in  accordance  with  their  advice.  To 
take  the  place  of  the  ordinary  Parliament,  a  body  of 
twelve  was  to  be  chosen  by  the  barons  with  whom  the 
council  of  fifteen  was  to  consult  three  times  each  year. 
If  this  form  of  government  had  been  successful,  it  would 
have  been  a  government  by  barons  instead  of  a  govern- 
ment by  the  King.  It  would  have  been  an  oligarchy 
instead  of  a  monarchy.  But  the  new  government  did 
not  prove  permanent.  A  few  years  of  strife  and  civil 
war  ensued  during  which  the  King  and  his  son  were 
for  a  time  prisoners  in  the  hands  of  the  nobles.  Then 
the  royal  party  triumphed,  and  the  King  was  again  firmly 
established  in  the  government. 

The  political  contentions  of  the  reign  of  Henry  III.  are 
significant  for  many  reasons.  In  the  first  place,  the  clergy 
were  gradually  becoming  less  influential  as  leaders  of  the 
people.  This  was  due  in  part  to  the  jealousy  felt  by  the 
higher  clergy  respecting  the  leadership  of  the  barons  ;  in 
part  to  the  continued  exactions  of  the  Pope  supported  by 
the  papal  party  among  the  English  clergy  ;  and  in  part 
to  the  religious  awakening  of  the  people  through  the 
preaching  of  the  Friars.  There  was  a  great  national 
revival  in  religion  and  in  learning.  The  quickened  moral 
perceptions  of  the  people  led  them  to  see  in  the  corrupt 
and  avaricious  Italian  dergvforced  upon   the    English 

OFTHE 

UNIVERSITY 

OF 


172         GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xiv 

Church,  representatives  of  a  corrupt  papal  See  which  they 
more  and  more  distrusted  and  disliked.  This  is  an  in- 
stance in  which  the  spiritual  teaching  of  the  Church  is 
seen  to  have  a  tendency  to  weaken  the  Church  as  a  part 
of  the  government.  Again,  it  was  in  the  midst  of  the 
strife  between  King  and  barons  that  the  word  "parliament" 
came  to  be  applied  to  the  national  assembly.  The  change 
of  name  did  not  in  itself  signify  anything,  but  there  were 
some  facts  in  the  history  of  the  assembly  during  this  reign 
which  did  signify  much.  For  example,  the  claim  of  the 
Pope  to  feudal  dues  from  England  on  account  of  the  hated 
act  of  King  John  acknowledging  him  as  overlord,  fur- 
nished occasion  for  resistance  on  the  part  of  the  assembly. 
Henry's  unpopular  wars  in  France  also  drew  heavily  upon 
the  nation's  resources,  and  on  one  occasion,  at  least,  the 
Council  flatly  refused  a  grant  demanded  by  the  King.^ 

More  significant  still  was  the  effort  of  the  barons,  contin- 
ued for  more  than  twenty  years,  to  gain  or  to  exercise  control 
over  the  appointment  of  ministers.  This  attempt  reached 
a  sort  of  culmination  in  the  Provisions  of  Oxford,  in  1258. 
True,  the  plan  there  set  forth  was,  as  stated  above,  no 
more  effective  than  was  that  of  the  twenty-five  barons  of 
Magna  Charta ;  yet  the  attempt  itself  is  suggestive  of  one 
feature  of  the  modern  Constitution.  The  Parliament  was 
still  an  ill-defined  body  with  little  regularity  as  to  the  mem- 
bers or  the  classes  of  persons  composing  it.  Yet,  as  early 
as  1249  the  House  refused  to  act  upon  a  difficult  and  impor- 
tant matter  on  account  of  the  absence  of  some  of  its  mem- 
bers.^  This  is  significant  as  an  early  evidence  of  the  idea 
of  a  definition  of  the  assembly  ;  still,  it  was  a  hundred 
years  later  before  a  tolerably  clear  definition  was  attained. 

But  the  most  important  fact  of  all  was  the  attempt  of 
the  party  of  the  nobles  to  enter  into  competition  with  the 

1  Stubbs,  Constitutional  History  of  England^  Vol.  II.,  p.  65. 

2  Medley,  English  Constitutional  History^  p.  118. 


CHAP.  XIV     THE   POWER   OF   THE   CROWN  REGAINED  173 

King  to  secure  a  hold  upon  the  counties  and  towns.  The 
mere  presence  of  representatives  from  counties  and  towns 
in  an  assembly  such  as  that  of  the  time  of  Henry  III.  is  a 
thing  of  little  consequence.  But  the  fact  of  the  existence 
of  a  king's  party  competing  with  a  barons'  party  for  the 
support  of  counties  and  towns  by  means  of  a  summons  to 
Parliament,  is  a  matter  of  much  consequence.  Evidences 
of  such  a  contest  appear  in  the  war  between  the  oligarchy 
and  the  King.  Having  made  prisoners  of  King  Henry 
and  his  son  Edward  at  the  battle  of  Lewes,  in  1264,  the 
barons  set  up  a  provisional  government  with  Earl  Simon 
de  Montfort,  their  leader,  at  its  head.  In  the  following 
year  Earl  Simon  summoned  a  Parliament  of  his  own  sup- 
porters to  which  he  invited  representatives  from  counties 
and  towns.  Note  in  this  connection  a  significant  fact. 
The  young  prince  who  was  then  a  prisoner  had  five  years 
before  threatened  to  join  the  community  in  compelling 
the  barons  to  fulfil  their  obligations.^  A  few  years  later, 
Edward,  having  become  King  of  England,  fulfilled  that 
threat,  and  as  a  part  of  the  process  of  fulfilment  he  too 
called  upon  towns  and  counties  to  send  representatives 
to  meet  with  him  in  Council.  It  is  this  Parliament  of 
Edward  I.  thirty  years  after  that  of  Earl  Simon,  which 
marks  the  beginning  of  a  permanent  recognition  of  the 
representative  feature  in  the  national  assembly. ^ 

The  reign  of  Edward  I.  is  of  unusual  interest  in  the 
study  of  the  Constitution,  whether  we  view  the  subject 
from  the  standpoint  of  the  forms  of  government,  or  from 
the  standpoint  of  the  balancing  of  the  dominant  forces 
of  the  government.  Besides  giving  to  Parliament  its 
representative  form,  Edward  did   much  to   give   perma- 

1  Gardiner,  Students'  History,  p.  199 ;  Stubbs,  Constitutional  History ^ 
Vol.  11. ,  p.  81. 

'^  See  Medley  on  the  Composition  of  the  Model  Parliament,  English 
Constitutional  History,  p.  123. 


174         GROWTH  OF  THE  ENGLISH  CONSTITUTION    cuap.  xiv 

nence  of  form  to  the  high  courts  of  the  reahn.  It  was 
Edward  who  succeeded  in  winning  back  to  the  Crown  the 
confidence  of  the  English  people,  thus,  in  a  sense,  undo- 
ing the  work  of  John  and  Henry  III.  Yet  the  existence 
of  the  Great  Charter,  and  especially  the  fact  that  clergy, 
barons,  lesser  nobility,  and  townsfolk  had  for  a  generation 
or  two  laboured  together  to  secure  the  ends  outlined  in 
the  Charter,  could  not  be  undone.  During  part  of  the 
time  the  people  looked  to  the  clergy  as  the  chief  patrons 
of  their  local  privileges;  part  of  the  time  they  looked  to 
the  barons  as  their  most  trustworthy  supporters.  Larger 
and  larger  classes  were  becoming  conscious  of  personal 
privileges  and  of  the  power  of  their  own  classes.  Edward 
could  win  the  loyal  support  of  the  people  only  by  con- 
vincing them  that  he  was  a  more  effective  supporter  of 
the  principles  of  the  Charter,  than  were  the  barons ;  that 
their  local  privileges  were  safer  in  his  hands  than  they 
would  be  in  the  hands  of  the  clergy  or  the  aristocracy. 

It  will  be  remembered  that  from  the  time  of  Henry  I. 
the  sending  of  judges  from  the  King's  Council  to  hold 
courts  in  the  counties  tended  to  strengthen  the  hold  of 
the  King  upon  the  people  through  their  local  institutions. 
Henry  II.  developed  and  used  this  power  with  marked 
effect.  It  should  be  noticed,  too,  that  one  of  the  important 
provisions  of  Magna  Charta  is  that  these  courts  should 
be  held  in  each  county  four  times  each  year.  During  the 
long  regency  after  the  death  of  John  the  people  enjoyed 
these  among  other  charter  privileges  at  the  hands  of  the 
clergy  and  the  barons. 

It  was  part  of  Edward's  policy  to  turn  the  judicial 
system  to  the  advantage  of  the  Crown.  In  the  hands  of 
Henry  I.,  and  later  in  those  of  Henry  II.,  that  system 
was  scarcely  distinguishable  from  the  other  administra- 
tive agencies  of  the  King  :  the  same  officers  managed  all 
the  King's  affairs.     The   beginnings   of   separation  were 


CHAP.  XIV      THE   POWER   OF  THE   CROWN  REGAINED  175 

noticed  in  the  time  of  Henry  II.,  and  before  Edward 
came  to  the  throne  the  courts  and  the  common  law 
which  had  been  established  through  their  agency  had 
become  a  distinct  factor  in  the  government.  The  courts 
held  by  the  King's  justices  in  the  counties  had  encroached 
upon  the  feudal  courts,  upon  the  Church  courts,  and 
upon  the  local  courts  of  the  hundred,  while  there  was 
also  a  tendency  to  modify  the  county  court.  The  first 
effect  of  the  centralized  judicial  system  was  greatly  to 
strengthen  the  power  of  the  Sovereign.  But  it  will  be 
seen  that  the  tendency  of  fixed  laws  administered  accord- 
ing to  rigid  rules  is,  in  itself,  to  limit  all  arbitrary  power. 
The  courts  and  the  law  became  a  bulwark  of  the  people, 
or,  at  least,  of  certain  classes  of  the  people,  against  des- 
potic government.  Yet  the  same  courts  in  the  hands  of  a 
wise  and  energetic  monarch  were  ever  a  source  of  royal 
strength  as  against  powerful  subjects.  Edward  I.  fully 
appreciated  the  value  of  the  judicial  system  which  he  had 
inherited.  Three  separate  common  law  courts  had  been 
gradually  developed  out  of  the  Curia  Regis  of  Henry  I., 
and  to  them  Edward  gave  a  still  more  distinct  organi- 
zation. ^  He  took  care,  also,  that  justices  should  be 
appointed  who  would  protect  the  people  against  the  law- 
lessness of  the  barons.  Were  any  of  his  justices  sus- 
pected of  corruption,  he  punished  them  as  did  Henry  II. 
a  hundred  years  before.  Thus  in  Edward's  hands  the 
courts  of  law  were  made  effective  for  the  restoration  of 
power  to  the  Crown. 

With  the  separation  of  the  courts  from  the  King's  coun- 
cil came  the  separation  of  the  judicial  from  the  financial 
business  of  the  realm.  When,  as  in  the  times  of  Henry  I. 
and  Henry  II.,  the  sovereign  used  the  same  body  of  men 
to  determine  and  publish  his  policy,  to  settle  questions  of 
law  and  of  government,  and  to  arrange  with  the  county 
1  See  Gneist,  The  English  Parliament,  p.  114. 


176         GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xiv 

courts  for  the  collection  of  revenue,  the  relation  between 
the  central  government  of  the  King  and  the  local  govern- 
ments was  close  and  intimate.  No  distinction  was  made 
between  the  power  of  the  Monarch  as  represented  by  the 
sheriff,  and  the  same  power  as  represented  by  the  royal 
courts.  With  the  separation  of  the  courts,  however,  from 
the  financial  administration  came  a  lessening  of  the  effec- 
tive hold  of  the  King  upon  the  local  governments.  Koyal 
communication  with  the  county  governments  was  through 
the  sheriffs,  but  with  the  encroachments  of  the  King's 
courts  upon  the  county  courts  the  sheriff's  office  had 
become  less  important.  The  sheriffs,  being  subject  to  the 
orders  of  courts  as  well  as  of  the  King,  were  less  efficient 
agents  of  communication  with  county  courts.  Confusion 
of  authority  in  the  sheriff's  office  tended  to  promote  cor- 
ruption as  well  as  weakness  there. 

From  the  signing  of  Magna  Charta,  the  place  of  the  Coun- 
cil, or  Parliament,  in  respect  to  matters  of  revenue,  became 
more  important.  When  Henry  III.  and  his  barons  began 
to  vie  with  each  other  in  calling  upon  county  courts  to 
send  representatives  to  their  respective  Parliaments,  their 
chief  object  was  to  strengthen  their  military  and  financial 
support  in  counties  and  towns.  Edward  saw,  as  his 
father  did  not,  that  the  King  needed  to  have  the  loyal 
support  of  the  people.  Much  has  been  made  of  the  fact 
that  the  Parliament  of  Earl  Simon  supplied  King  Edward 
with  a  model,  but  Edward  seemed,  nevertheless,  to  have 
proceeded  in  his  own  way  to  find  a  method  of  cooperation 
with  his  local  governments.  At  one  time  he  called  to- 
gether provincial  councils  in  different  parts  of  his  king- 
dom which  were  composed  of  four  knights  from  each  of 
certain  shires,  and  two  representatives  from  each  town 
and  city  of  the  locality,  besides  various  clergymen.  The 
barons  were  not  present  at  these  meetings.  At  another 
time  knights  and  burghers  Avere  called  to  meet  with  the 


CHAP.  XIV     THE  POWER  OF  THE   CROWN  REGAINED  177 

nobles,  while  the  clergy  were  not  summoned.  In  one 
case  the  representatives  from  boroughs  and  cities  were 
summoned  through  the  sheriffs ;  in  another  the  summons 
was  issued  through  the  mayors.  Knights  were  sometimes 
called  to  meet  with  bishops  and  barons  when  the  burghers 
and  the  lower  clergy  were  left  out.  The  clergy  were 
also  summoned  to  separate  councils.  "  But  in  1295,  for 
the  first  time,  all  these  various  ingredients  were  added 
together  in  their  completed  form  to  make  what  has  been 
known  to  after  ages  as  the  Model  Parliament.  To  this 
assembly  came  archbishops  and  bishops,  three  heads  of 
religious  orders,  sixty-seven  abbots,  seven  earls,  forty-one 
barons,  two  knights  from  each  of  thirty-seven  shires,  and 
representatives  from  each  of  one  hundred  and  ten  cities 
and  boroughs  throughout  the  kingdom,  —  a  body  of 
rather  more  than  four  hundred  persons."^ 

The  formation  of  Parliament  was  an  incident  in  the 
efforts  of  the  King  to  regain  power  over  the  nobility 
through  the  support  of  the  people.  Direct  dealing  with 
the  people  tended  to  remove  abuses  in  the  sheriff's  office, 
and  this  not  only  helped  the  King  to  gain  the  confidence 
of  his  people,  but  for  the  time  being  undoubtedly  in- 
creased his  effective  hold  upon  their  resources.  Our 
modern  notions  lead  us  to  think  that,  as  a  matter  of 
course,  a  Parliament  limits  the  power  of  the  King.  But  a 
good  many  things  had  to  happen  after  Edward  established 
the  Parliament  on  a  representative  basis  before  Parliament 
tended  to  limit  in  any  appreciable  degree  the  royal  power. 
It  is  almost  impossible  to  read  of  such  an  institution  as 
the  English  Parliament  in  the  time  of  Edward  without 
reading  into  the  history  ideas  and  notions  which  had 
never  occurred  to  the  people  of  that  day.  To-day  Par- 
liament is  sovereign,  in  legislation,  in  finance,  in  admin- 

1  Medley,  Constitutional  History,  p.  123 ;  Stubbs,  Select  Charter, 
p.  482  seq. 

N 


178         GROWTH   OF   THE   ENGLISH   CONSTITUTION    chap,  xiv 

istration.  And  because  there  has  been  at  all  times  a 
national  assembly  under  the  name  of  Parliament,  Great 
Council,  or  Witenagemot,  it  is  natural  to  associate  with 
that  body  the  vast  powers  possessed  by  the  Parliament  of 
to-day.  It  will  help  us  to  understand  the  origin  of  the 
modern  Constitution,  if  we  look  upon  the  early  assemblies 
not  as  law-making  bodies  chiefly,  but  rather  as  adminis- 
trative agencies  of  the  government.  Henry  I.  could  get 
along  without  giving  much  attention  to  the  Great  Council, 
because  he  found  in  a  smaller  body  of  men  an  effective 
administrative  agency. ^  Henry  II.,  on  the  other  hand, 
while  he  continued  the  operation  of  the  same  administra- 
tive agencies,  yet  also  made  large  use  of  the  Great  Council.^ 
Calling  bishops  and  barons  to  meet  in  Council,  he  was 
able  to  compel  them  to  give  formal  assent  to  his  predeter- 
mined policy.  In  his  hands  the  Council  was  clearly  an 
agent  for  increasing  the  royal  power.  When  the  barons 
first  tried  their  hand  at  governing,  in  the  time  of  the  con- 
flict with  Henry  III.,  they  set  up  a  frame  of  government 
which  left  out  the  Parliament  altogether,  substituting  for 
it  a  body  of  twelve  of  their  own  number.  Edward  I.^ 
used  the  Great  Council  in  the  early  part  of  his  reign  to 
perfect  the  judicial  machinery  of  his  government.  To 
build  up  his  administrative  policy,  and  to  forestall  the 
clergy  and  the  barons  in  gaining  control  of  the  local  gov- 
ernments, he  adopted  the  policy  of  direct  communication 
with  counties,  towns,  and  cities  through  their  own  repre- 
sentatives. When  he  called  these  representatives  to  meet 
with  his  Great  Council  in  1295,  it  was  chiefly  with  the 
intention  of  strengthening  his  administration.  The  Great 
Council   and  early  Parliaments  were  administrative   and 

1  See  Stubbs,  Constitutional  History^  Vol.  I.,  p.  312. 

2  Ihid.,  Chap.  XII. 

3  See  his  work  well  treated  by  Gneist,  The  English  Parliament^  p.  106 
et  seq. 


CHAP.  XIV      THE   POWER   OF   THE   CROWN  REGAINED  179 

judicial  bodies ;  they  were  not  in  the  modern  sense  agen- 
cies for  determining  policies. 

The  year  after  the  meeting  of  the  noted  Model  Parlia- 
ment of  1295,  Edward,  being  still  sore  pressed  for  money, 
gathered  companies  of  merchants,  and  persuaded  them  to 
grant  increased  export  duties.  He  also  collected  compa- 
nies of  the  clergy,  and  persuaded  them  to  grant  large  sums. 
When  Edward  again  met  his  Parliament,  the  Archbishop 
of  Canterbury  presented  a  Bull  of  the  Pope  forbidding 
the  clergy  to  pay  taxes  to  a  layman ;  and  on  the  strength 
of  this,  the  clergy  refused  a  grant  to  the  King.  "Edward, 
instead  of  arguing  with  the  Archbishop,  directed  the  justice 
of  the  King's  Bench  to  announce  that,  as  the  clergy  would 
pay  no  taxes,  they  would  be  no  longer  protected  by  the 
King.  The  clergy  now  found  themselves  in  evil  case.  Any 
one  who  pleased  could  rob  them  or  beat  them,  and  no  redress 
was  to  be  had.  They  soon  therefore  evaded  their  obliga- 
tion to  obey  the  Bull,  and  paid  their  taxes  under  the  pre- 
tence that  they  were  making  presents  to  the  King,  on  which 
Edward  again  opened  his  courts  to  them."  Mr.  Gardiner,^ 
from  whom  the  above  is  quoted,  remarks  that  in  the  days 
of  Henry  I.  or  Henry  II.  the  King  could  not  have  treated 
the  clergy  in  that  way.  The  masses  of  the  people  now 
looked  to  the  King  rather  than  to  the  Church  for  protection. 

Edward  I.  gained  the  ill-will  of  many  of  his  barons 
because  he  was  constantly  stripping  them  of  power.  His 
encounter  with  the  Archbishop  and  the  clergy  naturally 
set  the  hierarchy  against  him.  His  exactions  from  the 
merchants  likewise  set  the  towns  against  him.  The  next 
year,  1297,  when  he  ordered  the  Earl  of  Norfolk  to  lead 
an  army  into  Gascony,  he  was  met  by  a  flat  ref usal.^  All 
classes  in  his  Parliament  turned  at  this  juncture  against 
the  King,  and  he  was  compelled  to  confirm  Magna  Charta 

1  Student's  History  of  England,  Vol.  I.,  p.  220. 

2  Green,  History  of  the  English  People,  Vol.  I.,  p.  364. 


180         GROWTH   OF  THE   ENGLISH   CONSTITUTION    chap,  xiv 

and  other  charters,  and  certain  important  clauses  on  the 
subject  of  taxation  were  added  to  the  Great  Charter. 
It  henceforth  became  much  easier  to  claim  that  any- 
general  tax  must  be  voted  by  Parliament,  or  that  any  tax 
not  voted  by  Parliament  was  illegal. 

This  incident  shows  that  whenever,  by  a  fortunate  co- 
incidence, the  nobles,  the  clergy,  and  the  influential  classes 
among  the  people  were  united  against  the  King,  they  could 
overpower  him.  Edward  was  an  eminently  wise  and  pow- 
erful king,  yet  he  was  forced  to  add  provisions  to  previous 
charters  which  tended  to  limit  his  control  over  taxation. 
But  the  true  value  of  the  new  words  of  the  charter  which 
Edward  gave  was  in  the  fact  that  in  coming  generations 
they  made  it  easier  for  the  people,  through  an  amplified 
Parliament,  to  gain  control  over  taxation.  For  the  time 
being,  the  giving  of  such  a  charter  made  it  a  little  more 
likely  that  a  king  would  ordinarily  call  upon  the  full 
Parliament  rather  than  upon  a  smaller  body  of  men  for 
the  administration  of  his  finances.  It  should,  however, 
be  distinctly  borne  in  mind  that,  whether  the  King  used 
the  smaller  body  or  the  larger,  it  was  the  King  who  con- 
trolled and  directed  affairs.  If  at  any  time  the  King 
could  not  carry  out  his  policy,  it  was  not  because  of  the 
existence  of  the  institution  known  as  the  Parliament,  but 
because  of  forces  outside  of  Parliament. 

It  would  be  absurd  to  say  that  it  was  the  Parliament 
that  forced  Edward  to  sign  the  charter.  It  was  rather  the 
enraged  barons,  the  clergy,  and  the  merchants,  with  the 
hold  which  these  had  on  the  lower  determining  forces  of 
the  nation.  The  idea  cannot  be  too  often  enforced  that  if 
at  this  time  in  English  history  the  Parliament  .had  been 
recognized  as  having  centred  in  itself  the  high  powers  of  a 
modern  Parliament,  it  would  have  ceased  to  exist.  It  was 
because  Parliament  was  looked  upon  by  all  classes  as 
simply  one  agency  for  doing  a  thing  which  had  to  be 


CHAP.  XIV      THE  POWER  OF  THE   CROWN  REGAINED  181 

done  in  some  way,  that  it  was  permitted  to  do  that  most 
important  of  all  things,  viz.  to  continue  to  be.  The  fact 
of  continuity  made  it  easier  in  after  generations  to  make  of 
Parliament  an  agency  for  governing  by  public  opinion. 
It  was  as  true  in  the  time  of  Edward  I.  as  it  was  in  the 
time  of  the  Conqueror  that  the  powers  which  really  limited 
the  Crown  were  the  Church,  the  nobles,  and  the  local  gov- 
ernments in  counties,  towns,  and  cities.  Every  one  of 
these  powers,  which  were  in  a  sense  independent  of  the 
Crown,  might,  as  we  have  seen,  be  made,  under  certain 
circumstances,  to  minister  to  the  power  of  the  Crown. 
The  real  strength  of  the  Crown  lay  in  so  balancing  these 
powers  one  against  the  other  as  to  make  them  each  in 
turn  support  the  government  of  the  King.  The  Church 
had  manifestly  lost  power  at  the  time  of  Edward  I. 
Probably  a  larger  and  larger  proportion  of  the  people  in 
local  governments  had  become  conscious  of  power.  The 
Crown  and  the  barons  held  their  own  with,  probably, 
little  change  in  relative  strength. 

It  is  a  matter  of  no  small  consequence  that  at  the  death 
of  Edward  I.  there  had  been  a  hundred  years  of  striving 
for  unattained  privileges.  Magna  Charta  is  a  catalogue 
of  such.  Each  class,  we  may  believe,  was  still  contending 
for  its  own  narrow  privileges,  yet  the  Charter  furnished 
the  opportunity  for  the  play  of  sentiments  that  were 
neither  narrow  nor  selfish.  It  is  much  more  than  an 
empty  form  that  the  kings  were  many  times  induced,  or 
forced,  to  ratify  the  charters  by  solemn  oath.  A  cen- 
tury of  striving  to  realize  an  ideal  may  be  worth  more  to 
a  nation  than  any  amount  of  obedience  to  a  clearly  deter- 
mined law. 


CHAPTER  XV 

PARLIAMENT  AS   AK   AGENCY  OF  FACTION 

TT^DWARD  II.  was  a  weak  monarch,  and  was  disposed 
-*-^  to  place  his  affairs  in  the  hands  of  favourites,  who 
were  not  acceptable  to  the  ruling  classes.  The  barons 
wished  to  regain  the  power  which  they  had  lost  at  the 
hands  of  Edward  I.  At  first  they  had  the  support  of  the 
nation,  and  were  able  to  compel  Edward  II.  to  place 
the  government  in  the  hands  of  twenty-one  of  their  num- 
ber, called  Lords  Ordainers,  who  were  to  exercise  prac- 
tically all  power.  The  Ordainers,  for  the  time  being, 
entirely  displaced  the  Parliament.  This  is  an  indication 
of  the  sort  of  Constitution  which  England  would,  have 
had  if  the  barons  could  have  had  their  way.  They  could 
temporarily  gain  the  support  of  the  dominant  forces  of 
the  nation,  because  the  King's  government  in  the  hands 
of  odious  foreign  advisers  was  excessively  bad.  But  in  a 
few  years  the  government  of  the  barons  was  seen  to  be 
bad  also.  Then  certain  of  the  King's  favourites  were 
shrewd  enough  to  devise  a  way  by  which  he  might  over- 
throw the  nobles.  This  plan  was  to  call  a  full  Parlia- 
ment, and  by  means  of  it  to  destroy  the  power  of  the 
oligarchy.  The  new  Parliament  enacted  laws  providing 
that  matters  of  government  should  thereafter  be  estab- 
lished in  a  Parliament  composed  of  the  clergy,  the  barons, 
and  the  commons. 

This  point  in  the  history  of  Parliament  is  important  as 

182 


CHAP.  XV     PARLIAMENT  AS   AN  AGENCY  OF  FACTION        183 

marking  the  first  distinct  declaration  that  the  Commons 
should  have  a  share  in  law-making.  The  appeal  to  the 
ruling  classes  by  means  of  a  Parliament  enabled  the  King 
and  his  favourites  to  prevail  over  the  Ordainers ;  but 
having  so  prevailed,  they  were  unable  to  maintain  their 
position.  The  Queen  and  a  faction  of  the  barons  turned 
against  the  King.  He  was  forced  to  abdicate  his  throne, 
and  his  son  Edward  was  crowned  in  his  stead.  Parlia- 
ment was  used  as  an  agency  for  deposing  one  king  and 
crowning  another.  This  may  suggest  the  great  Revo- 
lution of  1688,  but  in  reality  the  two  things  were  quite 
dissimilar.  The  act  of  1688  was  a  great  revolution, 
because  it  carried  with  it  a  certain  theory  of  the  rights 
of  Parliament.  There  is  no  evidence  that  any  theory 
of  the  rights  of  Parliament  had  taken  shape  in  any 
mind  in  1327.  Getting  rid  of  a  despised  king,  and  an 
obnoxious  husband,  was  in  itself  a  disagreeable  business. 
The  Parliament  was  the  most  available  agent  for  such  a 
task.  Five  years  earlier.  Parliament  was  one  of  the  means 
which  this  same  king  had  used  for  getting  hold  of  those 
forces  of  the  nation  which  enabled  him  to  destroy  his 
chief  enemies  among  the  barons.  While  these  things 
could  all  take  place  without  the  existence  of  any  distinct 
theory  concerning  the  rights  and  powers  of  Parliament,  it 
must  yet  be  admitted  that  the  acts  are  in  themselves  fitted 
to  develop  a  theory. 

The  greater  part  of  Edward  III.'s  reign  was  occupied 
in  war  with  France.  This  war  served  to  bring  the  con- 
sciousness of  increased  power  to  large  classes  of  the 
people.  The  shrewdness  of  William  I.  had  led  him  to 
preserve  the  fyrd,  or  old  English  militia,  and  provide 
for  its  maintenance.  We  have  seen  that  until  the  time 
of  Magna  Charta  any  English  king,  however  bad,  could 
maintain  himself  against  his  barons  by  calling  to  his  aid 
the  English  militia.     Henry  II.  thought  it  worth  while 


184  GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xv 

to  reorganize  and  strengthen  those  local  forces,  and  they 
became  a  powerful  aid  to  clergy  and  the  barons  in  their 
contest  with  King  John;  and  all  the  kings,  nobles,  and 
clergy  had  always  more  or  less  influence  over  the  local 
governments  of  which  the  militia  formed  a  part,  and  ac- 
cording as  one  or  another  of  these  ruling  classes  gained 
control  of  this  popular  force  that  class  prevailed  over  its 
enemies.  As  an  incident  to  the  building  up  of  kingly 
power,  Edward  I.  still  further  developed  and  strength- 
ened the  fyrd  ;  but  the  possibilities  wrapped  up  in  the 
organization  were  not  fully  appreciated  till  bands  of 
those  trained  and  armed  peasants  had  destroyed  feudal 
armies  of  many  times  their  own  number  at  Crecy  and  at 
Poitiers. 

Parliaments  were  habitually  used  during  the  reign  of 
Edward  III.  as  agencies  for  voting  supplies.^  It  was 
during  this  reign  that  the  two  Houses  were  organized 
into  their  permanent  forms. ^  The  House  of  Lords  was 
composed  of  the  higher  clergy  and  the  earls  and  barons  of 
the  Great  Council.  The  knights  from  the  shires  and  the 
burgesses  and  citizens  from  towns  and  cities  were  formed 
into  one  House  called  the  House  of  Commons.  The  lower 
clergy  gradually  ceased  to  attend  the  meetings  of  the  as- 
sembly.^ From  the  time  of  the  Model  Parliament  of  1295 
to  the  formation  of  the  two  Houses  about  1341,  much  con- 
fusion continued  to  exist  in  the  organization  of  Parlia- 
ment. There  were  times  when  four  diverse  classes  voted 
supplies  or  transacted  other  business  separately.  These 
were  the  old  Council  of  bishops  and  barons,  the  knights, 
the  burgesses,  and  the  lower  clergy.  They  appear  to  have 
sometimes  met  separately  or  in  sections ;  sometimes  to 
have  sat  together  while  still  acting  separately.  Grad- 
ually, out  of  the  confusion,  arose,  during  the  early  years 

1  Stubbs,  Constitutional  History,  Vol.  II.,  p.  379.      2  ji^f^l.,  p.  376. 
8  Medley,  English  Constitutional  History,  p.  135. 


CHAP.  XV      PARLIAMENT   AS   AN  AGENCY   OF  FACTION        185 

of  the  reign  of  Edward  III.,  the  two  separate  and  distinct 
Houses  of  Parliament  which  continue  to  the  present  day. 

Thenceforth  the  representatives  of  the  lesser  nobility, 
called  knights  of  the  shire,  sat  with  representatives  from 
towns  and  cities.  The  House  of  Commons,  as  thus  com- 
posed, represented  the  wealthy  and  influential  classes. 
In  the  counties  those  who  were  only  a  little  less  wealthy 
and  powerful  than  the  barons  were  usually  chosen  to  Par- 
liament. In  the  towns  and  cities  only  the  more  wealthy 
citizens  had  an  important  share  in  local  government,  and 
the  more  wealthy  of  these  would  usually  be  sent  to  Par- 
liament. The  bringing  together  of  so  many  important 
persons  in  one  House  and  giving  to  them  a  share  in 
the  government  would  naturally  tend  to  develop  the  con- 
viction that  Parliament  was  itself  an  institution  which 
had  rights,  privileges,  and  powers.  The  House  of  Lords 
was  led  to  assert  the  principle  that  only  peers  should 
take  part  in  the  trying  of  peers,  but  the  House  of  Com- 
mons, from  the  nature  of  its  origin,  held  the  first  place 
in  respect  to  the  voting  of  supplies.  The  defining  of 
the  functions  of  the  two  Houses  tended  to  promote  the 
consciousness  of  special  powers  in  each.  A  comparison 
of  their  powers  would  reveal  the  fact  that  the  House  of 
Commons,  so  long  as  it  really  represented  the  local  gov- 
ernments of  the  counties  and  the  chief  towns  and  cities 
of  the  realm,  carried  with  it  the  controlling  physical  force 
of  the  nation. 

Parliament,  thus  organized,  became  a  natural  agency 
for  resisting  the  King.  It  took  the  place  in  large  part 
of  the  armed  barons  of  former  times.  When  a  leader 
among  the  barons  saw  the  necessity  of  resisting  the  King 
or  the  King's  favourites,  instead  of  raising  an  army  by  an 
appeal  to  his  friends,  he  sought  to  gain  his  ends  by  means 
of  the  Parliament. 

During  the  later  years  of  the  reign  of   Edward  III. 


186  GROWTH   OF   THE   ENGLISH   CONSTITUTION    chap,  xv 

England  was  in  such  a  state  of  disturbance  and  strife  as 
would  have  led  in  other  times  to  civil  war.  Notwith- 
standing the  great  victories  over  French  armies  the  re- 
sults of  the  war  were  disastrous  to  England.  Taxes  were 
oppressive,  and  the  money  raised  was  squandered  in  of- 
fensive ways.  The  King,  never  a  great  man,  was  los- 
ing his  mental  powers  and  had  become  the  victim  of  a 
designing  mistress.  Causes  other  than  the  immediate 
conduct  of  the  government  also  served  to  create  an  at- 
mosphere of  discontent.  In  1349  commenced  the  visita- 
tions of  the  Black  Death,  which  is  believed  to  have  de- 
stroyed half  the  population.  Social  and  industrial  changes 
were  in  progress.  Free  labour  had  largely  taken  the  place 
of  bond  service,  and  in  consequence  of  the  death  of  so 
many  labourers  there  was  a  natural  tendency  for  wages  to 
increase.  But  the  wealthy  classes,  being  the  law-makers, 
strove  to  protect  themselves  by  severe  and  repressive  laws 
against  the  labourers.  Large  unrepresented  classes  who 
were  injured  by  the  conduct  of  the  government  became 
conscious  of  their  injuries.  A  revival  of  religion  added 
to  the  social  uneasiness.  Many  preachers  and  teachers 
arose  who  taught  the  people  that  their  sufferings  were 
due  to  the  sins  of  their  rulers,  while  the  belief  spread  that 
the  Church  was  both  rich  and  corrupt  as  well  as  oppres- 
sive.^ By  far  the  most  noted  of  those  teachers  was  John 
Wiclif,  whose  preaching  with  that  of  his  followers  fur- 
nishes one  of  the  strongest  illustrations  of  the  tendency 
of  the  teaching  function  of  the  Church  to  weaken  its 
governing  function. 

The  clergy  filled  a  prominent  place  in  the  King's  Coun- 
cil and  among  the  high  officers  of  State.  The  laity  were 
always  jealous  of  their  power  and  influence,  and  a  large 
party  among  the  nobility  wished  to  degrade  the  clergy 
and  seize  the  property  of  the  Church.  John  of  Gaunt, 
1  Ashley,  Economic  History,  Vol.  II.,  p.  260. 


CHAP.  XV      PARLIAMENT  AS   AN  AGENCY  OF  FACTION        187 

Duke  of  Lancaster,  made  himself  the  leader  of  a  part  of 
the  anti-clerical  faction.  But  the  Duke  of  Lancaster 
was  himself  feared  and  dreaded  by  many  of  that  faction. 
There  was  uncertainty  about  the  succession  to  the  throne. 
The  aged  King  was  declining.  His  son  Edward,  the 
Black  Prince,  was  the  victim  of  a  mortal  disease.  It  was 
believed  that  the  Duke  of  Lancaster  aspired  to  the  throne. 
In  this  emergency,  the  Black  Prince  headed  the  party  of 
opposition  to  the  corrupt  court,  now  dominated  by  the 
Duke  of  Lancaster,  and  a  Parliament  was  assembled,  in 
1376,  which  has  received  the  name  of  The  Good  Parlia- 
ment. It  was  noted  for  the  vigorous  action  of  the  House 
of  Commons,  which  refused  a  grant  of  supplies  until  the 
accounts  of  the  government  should  have  been  laid  before 
them.  With  the  Black  Prince  to  support  the  Commons, 
the  Diike  of  Lancaster  was  thrust  out  of  the  King's  Coun- 
cil ;  the  treasurer  was  impeached  before  the  House  of 
Lords,  convicted,  and  imprisoned,  —  the  first  instance  in 
history  of  such  an  act,  —  and  the  King's  mistress  was 
removed  from  the  court. 

In  the  midst  of  these  reforms  the  Black  Prince  died,  and 
following  that  event  the  Duke  of  Lancaster  returned  to 
power.  Under  his  direction  another  Parliament  was  called, 
which  undid  much  of  the  work  of  the  Good  Parliament. 
This  incident  shows  Parliament  to  have  been  a  tool  rather 
than  an  important,  independent  power.  Still,  it  was  a 
much  more  civilized  agency  than  were  the  armed  troops 
which  it  displaced.  And  it  is  because  Parliament  was  for 
so  many  centuries  an  effective  tool  in  the  hands  of  first 
one  and  then  another  of  the  opposing  factions  of  the  realm 
that  it  has  been  comparatively  easy  in  modern  times  to 
localize  in  Parliament  itself,  effective  power. 

During  the  reign  of  Richard  II.  (1377-1399)  the  vari- 
ous elements  in  the  Constitution  were  quite  thoroughly 
tested.     The  King  was  only  twelve  years  old  at  his  coro- 


188  GROWTH   OF  THE   ENGLISH  CONSTITUTION      chap,  xv 

nation.  There  was  a  baronial  faction  with  the  Duke  of 
Lancaster  at  its  head,  and  there  was  a  clerical  party. 
These  were  only  a  short  time  before  at  the  point  of  civil 
war.  The  masses  of  the  people  were  overburdened  and 
discontented.  The  sense  of  injury  on  the  part  of  the 
masses  was  greatly  increased  by  the  preaching  of  Wiclif 
and  the  Lollards.  The  French  and  Scots  were  ravaging 
the  borders,  and  with  the  advent  of  the  boy  King  there 
was  danger  that  the  whole  country  would  be  overrun  by 
hostile  armies.  The  dangers  from  discontented  peasants 
and  from  foreign  enemies  were  so  great  that  for  the  first 
few  years  of  the  reign  the  bishops  and  the  barons  com- 
posed their  differences  and  united  to  make  up  a  Council  to 
preserve  order  and  prevent  disaster.  It  was  during  these 
few  years  that  there  occurred  various  revolts  among  the 
peasantry.  The  most  important  of  these  was  tlie  one  in 
the  county  of  Kent,  led  by  Wat  Tyler.  Armed  peas- 
ants overran  the  country,  and  gained  possession  of  the 
city  of  London,  and  were  induced  to  return  to  their  homes 
only  upon  the  promise  of  the  young  King  that  their 
grievances  should  be  redressed.  They  complained  of  the 
unequal  taxation  of  the  government  and  of  the  tyranny 
of  the  landlords.  But  the  word  of  the  King  was 
not  observed,  nor  was  the  lot  of  the  peasants  improved. 
Nevertheless,  the  demonstration  of  power  on  the  part  of 
the  populace  was  such  that  the  wealthy  and  ruling  classes 
were  led  to  tremble  for  their  position.  If,  under  an  igno- 
rant leader,  the  common  people  could  take  the  city  of  Lon- 
don and  slay  the  Archbishop  of  Canterbury,  what  might 
they  not  do  if  led  by  a  competent  military  chief  ?  From 
this  time  forth  the  fear  of  the  masses  had  a  sensible  re- 
straining influence  upon  the  quarrels  of  the  privileged 
wealthy  classes. 

The  first  few  years  of  Richard's  reign  after  he  was  old 
enough  to  take  personal  control  of  the  government  were 


CHAP.  XV      PARLIAMENT  AS  AN  AGENCY  OF  FACTION        189 

characterized  by  violence  and  faction.  The  King,  with 
certain  of  his  favourites,  undertook  to  preserve  order  by 
the  exercise  of  royal  prerogative,  and  the  Duke  of  Glouces- 
ter, one  of  the  King's  uncles,  headed  a  faction  against 
them.  Gloucester's  party  controlled  the  Parliament  of 
1386  ;  the  King's  ministers  were  impeached,  and  a  com- 
mission of  eleven  was  appointed  to  administer  the  govern- 
ment for  one  year.  In  the  hope  of  overpowering  this 
commission,  the  King  secured  a  decision  from  his  judges 
declaring  its  appointment  illegal,  and  was  proceeding  to 
summon  a  Parliament  which  should  punish  the  commis- 
sioners, when  five  of  them,  who  were  called  the  Lords 
Appellant,  raised  the  standard  of  rebellion.  Richard  was 
again  compelled  to  yield.  A  Parliament  subservient  to 
the  Lords  Appellant  impeached  and  executed  two  of 
his  ministers  and  drove  others  from  the  country. 
The  Sovereign  now  seemed  to  be  reduced  to  more  com- 
plete subjection  than  ever;  yet  within  a  few  years 
the  successful  oligarchy  became  itself  unpopular,  and 
Richard  placed  himself  once  more  at  the  head  of  the 
government. 

It  will  be  remembered  that  when  Henry  III.  was  put 
under  restraint,  a  party  of  the  barons  assumed  control, 
and  their  failure  led  to  the  trial  of  a  representative  Parlia- 
ment. Again,  when  Edward  II.  was  in  similar  fashion 
restrained  by  the  Lords  Ordainers,  he  was,  after  a  few 
years,  enabled  to  overthrow  the  oligarchy  by  an  appeal 
to  Parliament  and  by  enacting  a  law  which  gave  the  com- 
mons a  share  in  legislation.  So  now  when  Richard  II. 
perceived  the  waning  popularity  of  the  Lords  Appel- 
lant, he  threw  himself  into  the  hands  of  the  now  fully 
developed  Parliament,  and  for  several  years  ruled  in  accord- 
ance with  its  wishes.  When  Parliament  assembled,  Rich- 
ard required  his  ministers  to  lay  down  their  offices  so 
that  the  assembly  might  not  be  deterred  from  making 


190  GROWTH  OF  THE   ENGLISH   CONSTITUTION     chap,  xv 

complaints  against  them,  and  lie  restored  the  ministers 
to  office  only  when  he  was  assured  that  their  conduct  was 
agreeable  to  his  Parliament.  It  will  be  observed  that 
facts  of  this  sort  are  of  immense  value  to  the  modern 
statesman  in  the  construction  of  the  modern  theory  of  the 
power  of  Parliament. 

After  a  few  years  of  parliamentary  rule  Richard  be- 
came alarmed  at  the  rumours  of  plots  against  his  life,  and 
so  violent  was  his  conduct  that  he  is  believed  by  many  to 
have  been  insane.  He  compassed  the  death  of  Gloucester 
and  others  of  his  enemies.  He  called  a  packed  Parlia- 
ment, and  secured  the  passing  of  a  law  which  placed  the 
power  of  that  body  in  the  hands  of  eighteen  of  his  friends, 
thus  making  the  royal  government  absolute.  One  high- 
handed act  followed  another,  until,  upon  the  death  of 
the  Duke  of  Lancaster,  the  estates  of  the  dukedom  were 
confiscated.  Upon  that  the  young  Henry  of  Lancaster, 
who  had  been  banished  by  order  of  the  King,  landed  in 
the  kingdom  and  raised  an  army  to  vindicate  his  right  as 
heir  to  the  title  and  the  estates  of  the  duchy.  The  King 
was  overpowered,  and  a  Parliament  was  called  under  the 
direction  of  the  triumphant  party  of  the  barons,  with 
Henry,  Duke  of  Lancaster,  at  their  head.  This  Parlia- 
ment deposed  Richard  II.  and  crowned  Henry  of  Lan- 
caster in  his  stead. 

The  Parliament  which  deposed  Edward  II.  made  his 
son  Edward  king  in  his  place,  but  when  Richard  11.  was 
deposed,  the  direct  lineal  descendant  was  passed  over. 
If  the  law  of  descent  had  been  observed,  the  Crown  would 
have  gone  to  the  house  of  Mortimer,  which  was  descended 
from  the  second  son  of  Edward  III. ;  but  Parliament  gave 
it  to  Lancaster,  descendant  of  the  fourth  son.  Thus  the 
house  of  Lancaster  was  enthroned  by  means  of  superior 
military  and  political  power.  Three  hundred  years  later 
this  fact  made  it  seem  less  irregular  for  a  family  to  be 


CHAP.  XV      PARLIAMENT  AS   AN  AGENCY  OF  FACTION        191 

put  into  possession  of  the  Crown  through  the  grace  of 
Parliament,  and  hence  is  developed  the  doctrine  that  the 
nation  by  means  of  Parliament  may  do  anything  it  pleases 
with  the  Crown. 

It  is  to  the  rule  of  Edward  III.  and  Richard  II.  of  the 
Lancastrian  kings  that  those  who  withstood  the  claims 
of  the  Stuarts  looked  for  parliamentary  precedents.  But 
Parliament  according  to  Pym,  and  Eliot,  and  Vane,  and 
Shaftesbury,  was  a  very  different  institution  from  Parlia- 
ment according  to  Hotspur,  and  Gloucester,  and  York, 
and  Lancaster.  According  to  the  view  of  Pym  and 
Eliot,  Parliament  represented  the  intelligence,  the  judg- 
ment, and  the  conscience  of  the  nation ;  in  the  time  of 
Richard  II.  it  was  a  mere  tool  in  the  hands  of  a  faction, 
or  often  a  conspiracy  of  the  privileged  classes  against 
the  nation  rather  than  a  representative  institution  of  the 
nation. 

Before  the  time  of  the  Lancastrians  there  had  been,  in 
some  respects,  a  decline  in  the  effective  power  and  influ- 
ence of  the  masses  of  the  people  upon  the  administrative 
business  of  the  government.  William  I.  and  his  imme- 
diate successors  preserved  the  local  governments  of  the 
English  and  brought  themselves  into  direct  touch  with 
those  organizations  through  the  sheriffs  and  other  officers 
chosen  by  the  King.  The  local  governments  and  the 
local  militia  furnished  the  force  which  was  a  determining 
factor  in  all  contentions  between  kings,  barons,  and  clergy 
until  the  time  of  Edward  III.  Coincident  with  the  for- 
mation of  the  House  of  Commons  as  the  recognized  organ 
of  communication  between  the  King  and  the  counties, 
towns,  and  cities,  these  local  governments  were  them- 
selves becoming  more  exclusive  and  more  aristocratic. 
The  county  court  ceased  to  be  attended  by  a  large  body 
of  the  influential  people  of  the  county,  and  its  affairs 
were  transacted  by  the  justices  of  the  peace  appointed  by 


192  GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xv 

the  King  and  by  a  select  number  of  the  knights  and 
the  burgesses.  The  towns  and  cities  had  become  more 
wealthy,  and  their  governments  were  falling  into  the 
hands  of  a  more  exclusive  class. 

The  long  war  with  France  led  to  a  change  in  the  mili- 
tary organization  of  the  country,  or  coincided  with  it. 
There  came  into  being  a  detached  fighting  class.  This 
was  supported  in  part  by  high  taxes  exacted  from  the 
nation,  and  in  part  by  the  great  nobles  who  maintained 
among  their  retainers  large  bodies  of  armed  men  wearing 
their  lord's  liveries.  These  made  up  the  train  of  the 
great  man  and  by  means  of  them  he  often  became  a  source 
of  terror  to  both  king  and  people.  Laws  against  liveries, 
that  is,  against  these  bands  of  liveried  warriors,  began  to 
appear  with  the  reign  of  Richard  II.  and  continued  in 
force  for  many  generations. 

During  the  three  centuries  which  had  passed  since  the 
Conquest,  free  labour  had  been  gradually  displacing  serf- 
dom. The  liberated  peasants  were  often,  indeed,  a  less 
effective  political  factor  than  were  the  former  serfs.  So 
long  as  the  serf  belonged  to  a  lord  he  had  a  sort  of  repre- 
sentation in  local  governments.  The  free  peasant  was 
wholly  without  representation.  He  was  ill  treated,  and 
gradually  he  became  aware  of  his  injuries.  The  peasants' 
revolts  in  the  time  of  Richard  II.  convinced  the  privi- 
leged classes  that  there  was  in  the  abused  unrepresented 
class  a  force  which  would  destroy  them  should  it  be  di- 
rected by  effective  leaders.  The  religious  teachers  whom 
Wiclif  had  trained  threatened  to  become  such  effective 
leaders  of  the  abused  masses  of  the  people.  The  party 
of  Lancaster  had  for  a  time  defended  Wiclif  and  the 
Lollards.  But  when  that  party  came  into  power,  with 
the  accession  of  Henry  of  Lancaster,  the  leaders  among 
the  Lollards  were  put  to  death  without  mercy ;  and  after 
the  reign  of   the   first  two   Lancastrians  the  open   pro- 


CHAP.  XV      PARLIAMENT  AS  AN  AGENCY  OF  FACTION        193 

fession  of  their  peculiar  religious  beliefs  which  had  been 
made  instrumental  in  promoting  political  liberty  was 
unknown. 

By  the  time  of  the  deposition  of  Richard  II.  in  1399, 
certain  fixed  institutions  had  come  into  existence  which 
may  themselves  be  counted  as  factors  in  the  balancing  of 
the  high  powers  of  State.  More  than  two  hundred  years 
had  passed  since  the  organization  of  the  judicial  system 
of  Henry  II.  The  common  law  courts  were  now  well- 
established  and  venerable  institutions.  In  their  origin 
these  courts  were  agencies  for  strengthening  the  arm  of 
the  King,  yet  in  course  of  time  they  had  come  in  many 
ways  to  limit  that  power.  The  uniform  administration 
of  law  is  in  its  very  nature  against  arbitrary  power,  and 
a  knowledge  of  the  law  is  a  source  of  protection  to  the 
people.  It  should,  however,  be  borne  in  mind  that  the 
courts  were  still  often  used  as  a  means  of  tyranny. ^  The 
higher  nobility  were  accustomed,  by  means  of  their  armed 
retainers,  to  overawe  courts,  assassinate  jurors,  and  secure 
unjust  decisions ;  ^  and  the  power  which  the  great  lords 
exercised  over  the  courts  was  a  large  element  in  building 
up  and  maintaining  the  liveried  troops  who  followed  them. 
A  noble  could  appear  in  the  court  on  behalf  of  his  retainer, 
and  could  get  from  the  judicial  body  what  the  feudal  in- 
ferior could  not  get  for  himself.^  Thus,  in  one  way  and 
another,  the  courts  themselves  had  a  modifying  effect  upon 
the  balancing  of  the  powers  of  State. 

1  They  have  continued  to  be  so  used  at  times  even  down  to  the  present 
century.  Note,  for  instance,  sentence  passed  upon  Thomas  Paine  for  his 
book,  The  Bights  of  Man.  See  subject  treated  by  Medley,  English  Con- 
stitutional History,  Chap.  IX.,  "The  Liberty  of  the  Subject." 

2  See  The  Paston  Letters,  ed.  by  J.  Gardiner,  1872,  Nos.  418,  420,  472, 
503,  504  et  seq. 

8  Stubbs,  Constitutional  History,  Vol.  III.,  p.  530;  Greene,  History 
of  the  English  People,  Vol.  II.,  pp.  16,  17.  Paston  Letters,  Nos.  77,  107, 
418,  420,  and  several  others. 


194  GROWTH  OF   THE   ENGLISH   CONSTIiUTION    chap,  xv 

Besides  the  three  common  hxw  courts,  a  fourth  court, 
called  the  Court  of  Chancery,^  had  in  the  time  of  Rich- 
ard II.  grown  out  of  the  King's  Council. ^  Centuries  had 
been  required  for  the  common  law  courts  to  become  a 
separate  institution,  and  as  they  became  distinct  from  the 
King's  Council,  they  assumed  the  position  of  lower  courts 
from  which  there  was  an  appeal  to  the  King  in  Council. 
The  Chancellor,  who  was  at  first  the  King's  secretary, 
came  afterwards  to  exercise  high  judicial  functions,  and 
so  around  the  office  of  Chancellor  grew  up  the  Court  of 
Chancery.  Thus  out  of  the  one  King's  Court  of  the  time 
of  Henry  I.  had  come  four  distinct  judicial  bodies,  while 
there  was  still  in  the  King's  Council  a  measure  of  judicial 
power,  a  remnant  of  which  is  to  this  day  exercised  by  the 
Privy  Council. 

After  the  development  of  the  two  separate  Houses  of 
Parliament  in  the  early  years  of  the  reign  of  Edward  III. 
a  conflict  of  authority  speedily  grew  up  between  them  and 
the  King's  Council,  —  which  had  by  that  time  come  to  be 
called  the  Privy  Council.  The  King  and  his  Council  al- 
tered acts  of  Parliament,  and  the  two  Houses  objected. 
The  King  issued  orders  from  his  Council  which  were 
given  the  force  of  law.  Orders  from  the  Council  often 
conflicted  with  acts  of  Parliament,  and,  in  short,  there 
was  no  clear  line  of  demarcation  between  the  respective 
spheres  of  the  two  institutions. 

Thus,  out  of  the  one  ill-defined  assembly  of  the  Norman 
period  had' been  developed  four  separate  courts,  a  Privy 
Council,  and  two  Houses  of  Parliament.  Yet  the  real 
moving  forces  of  the  nation  were  not  to  be  found  in  any 
of  these  institutions.  They  still  dwelt  in  the  King,  in  the 
dukes  and  other  high  nobility,  in  the  Church,  in  the  lower 
nobility,  in  the  wealthy  classes  of  towns  and  cities,  and  in 

1  Medley,  English  Constitutional  History,  p.  340  et  seq. 

2  Anson,  Ldw  and  Custom  of  the  Constitution,  Vol.  II.,  p,  435.    ; 


CHAP.  XV     PARLIAMENT  AS  AN  AGENCY  OF  FACTION        1% 

the  lower  classes  of  freemen,  who  were  becoming  ever  more 
conscious  of  rights  and  of  injuries.  The  existence  of  the 
national  institutions  did,  no  doubt,  modify  in  some  meas- 
ure the  perpetual  strife  ;  but,  so  far  as  the  ruling  classes 
were  concerned,  it  was  still  a  government  of  force  rather 
than  of  law,  and  courts  and  parliaments  were  for  the  most 
part  mere  tools  in  the  hands  of  warring  factions. 


CHAPTER   XVI 

THE  NOBILITY   WEAKENED   BY  FACTION 

n^HE  Crown  in  the  hands  of  the  Lancastrians  represented 
-*-  a  faction.  One  great  baronial  faction  had  triumphed 
over  another  great  baronial  faction,  and  there  was  a  ten- 
dency to  a  counter-revolution  on  the  part  of  the  displaced 
faction.  The  marked  success  of  the  first  two  Lancas- 
trians in  a  measure  overcame  this  tendency.  There  fol- 
lowed during  the  minority  of  Henry  VI.  a  political 
generation  of  acquiescence  in  the  rule  of  the  house  of 
Lancaster.  Then,  partly  by  reason  of  the  personal  quali- 
ties of  the  King,  partly  through  adverse  circumstances, 
the  factional  strife  broke  out  in  the  middle  of  the  century 
into  the  Wars  of  the  Roses. 

The  roots  of  that  frightful  and  bloody  contest  run  far 
back  into  the  early  ages  of  English  history,  and  have  been 
to  some  extent  already  traced  in  preceding  chapters.  It 
may  be  well,  however,  again  to  glance  swiftly  over  some 
of  the  historic  facts  and  conditions  whose  tendencies  cul- 
niinated  in  the  great  fratricidal  strife  of  the  Middle 
Ages. 

From  the  days  of  the  creation  by  Henry  I.  of  a  new 
English  nobility  as  a  counterpoise  to  the  unmanageable* 
Norman  baronage,  a  tendency  to  factional  divisions  may 
be  clearly  seen.  At  first  the  line  of  separation  was 
mainly  a  national  one,  and  the  quarrels  represented  the 
inevitable  jealousy  of  the  English  dwelling  on  their  an- 

196 


CHAP.  XVI      THE  NOBILITY   WEAKENED   BY   FACTION  197 

cestral  lands  towards  the  greedy  and  usurping  French 
nobles,  and  of  the  French  whose  arms  had  established  and 
supported  the  Sovereign  in  his  conquered  realm  towards 
a  despised  and  inferior  race  which  had  cunningly  secured 
royal  favour.  As  time  went  on,  the  ostensible  and  even 
the  real  grounds  of  opposition  were  continually  shifting. 
Each  faction  was  forced  to  bid  for  the  favour  of  the  lower 
orders,  often  with  little  reference  to  any  question  of 
native  or  foreign  influence ;  and  in  some  periods  power 
swung  from  one  to  the  other  party,  as  one  or  the  other 
gained  more  of  popular  support.  The  great  lords  on  the 
Scottish  borders  had  been  permitted  and  encouraged  by 
the  earlier  kings  to  retain  a  large  measure  of  independent 
power,  and  they  naturally  became  leaders  of  the  opposing 
forces.  Changes  in  the  military  organization,  too,  by 
which  armed  retainers,  whose  business  was  war,  were 
substituted  for  mere  armed  tenants  and  peasants,  helped 
greatly  to  increase  the  power  of  the  lords.  At  one  time 
one -of  the  aristocratic  factions  championed  the  popular 
side,  at  another  it  was  the  opposing  nobles  who  claimed 
to  support  the  people's  interests.  A  hundred  years  before 
the  house  of  Lancaster  was  enthroned  the  Duke  of  Lan- 
caster headed  the  people's  opposition  to  the  foreign  fa- 
vourites of  Edward  II.  But  when  Richard  II.  was  to  be 
dethroned,  and  Henry  of  Lancaster  crowned,  the  Lancas- 
trians became  the  leaders  of  the  higher  nobility,  while  a 
tendency  ensued  for  their  enemies  to  seek  to  curry  favour 
with  the  more  popular  party. 

The  clergy,  likewise,  sometimes  cast  their  influence  to 
the  royal  side,  sometimes  with  one  or  other  of  the  aristo- 
cratic factions.  During  the  Lancastrian  period  the  weight 
of  their  choice  was  much  less  than  in  preceding  ages. 
Upon  the  Continent  the  Church  was  itself  rent  with  divi- 
sions, and  two  Popes  contested  for  supremacy.  The 
Church  in  England  had  become  rich  and  in  a  measure  cor- 


198         GROWTH   OF   THE   ENGLISH   CONSTITUTION    chap,  xvi 

rupt.  Kings  and  nobles  had  more  than  once  reached  forth 
envious  hands  to  grasp  its  wealth.  Being  thus  threatened, 
the  clergy  were  eager  to  ally  themselves  with  any  party 
which  seemed  likely  to  protect  them  in  the  possession  of 
their  property.  Hence  their  warm  support  of  the  Lan- 
castrian kings,  who  also  gratified  them  by  persecuting  the 
Lollards.  But  more  than  by  fear  of  losing  property  the 
real  strength  of  the  Church  had  been  sapped  by  the  moral 
unsoundness  which  was  becoming  clearly  apparent  to  the 
growing  spiritual  earnestness  and  insight  of  the  people, 
stimulated  by  criticisms  of  the  religious  teachers  in  the 
fourteenth  century. 

In  this  continual  strife  of  factions  may  be  seen  a  sug- 
gestion of  the  methods  followed  by  modern  political 
parties.  But  the  red  rose  and  the  white  were  not  sym- 
bols of  political  parties  in  any  accepted  modern  sense. 
Parties  of  to-day  are  held  together  by  common  beliefs  and 
common  opinions.  Lancastrians  or  Yorkists  were  bound 
together  by  common  fears  and  common  hatreds. 

The  knights,  citizens,  and  burgesses  who  were  repre- 
sented in  the  House  of  Commons  had  come  to  be  a  limited 
and  privileged  class.  Changes  which  had  been  made  in 
the  local  governments  separated  them  from  the  masses 
of  the  people,  over  whom  they  had  largely  lost  influence. 
The  governing  classes  might  now  be  justly  said  to  consti- 
tute a  conspiracy  against  the  people.  -Effective  power 
was  in  the  hands  of  the  King  and  the  great  lords.  If 
these  had  been  united,  among  themselves,  it  is  probable 
that  the  forms  of  parliamentary  institutions  would  not 
have  been  preserved. 

;  Henry  IV.  was  induced  to  favour  the  House  of  Com- 
mons, not  because  the  Commons  in  themselves  stood  for 
a  great  and  effective  power,  but  because  he  was  beset  on 
all  sides  with  great  lords  who  threatened  his  destruction. 
Under  such  circumstances  the  Commons  did  represent  a 


CHAP.  XVI      THE  NOBILITY  WEAKENED   BY  FACTION  199 

power  which  was  not  to  be  despised.  Henry  named  his 
ministers  in  Parliament,  and  one-third  of  them  were 
members  of  the  House  of  Commons.  It  was  understood 
that  ministers  thus  named  were  acceptable  to  Parliament. 
Sheriffs  under  the  direction  of  the  King  or  of  some  lord 
had  been  accustomed  to  name  the  members  to  represent 
the  county  in  Parliament  or  to  interfere  with  the  free 
choice  of  the  county  court.  Laws  were  passed  early  in 
Henry's  reign  to  remove  this  abuse.  The  House  of  Com- 
mons named  auditors  to  see  that  the  money  was  expended 
for  the  purposes  for  which  it  was  granted. ^  When  a 
money  bill  came  from  the  House  of  Lords  to  the  House 
of  Commons,  the  House  remonstrated,  claiming  for  the 
Commons  the  sole  right  to  originate  such  bills ;  and  the 
King  yielded  to  their  claim. ^  It  will  be  observed  that  all 
these  facts  in  the  history  of  the  House  of  Commons  were  a 
matter  of  great  convenience  to  the  statesmen  who,  two  hun- 
dred years  later,  determined  to  make  the  Lower  House  the 
dominant  factor  in  the  English  government.  Henry  IV. 
and  his  lords  made  these  concessions  to  the  Commons  be- 
cause the  Commons  were  weak.  They  always  had  been 
weak.  There  had  not  been  a  time  when  a  king  or  a  domi- 
nant faction  among  the  lords  could  not  call  a  House  of 
Commons  together  which  would  do  its  bidding.  They 
had  seen  Parliament  after  Parliament  packed  during  the 
previous  reign.  They  expected  still  to  control  the  mem- 
bership of  the  Commons.  If  the  seventeenth  century 
notions  of  the  power  of  the  Commons  had  entered  the 
minds  of  the  powerful  classes  at  any  time  during  the 
fifteenth  century.  Parliament  itself  would  have  been  ruth- 
lessly snuffed  out  of  existence. 

Statutes  were  passed  during  the  first  few  years  of  the 
reign  of  Henry  IV.  which  indicate  an  intention  to  secure 

1  Stubbs,  Constitutional  History  of  England,  Vol.  III.,  p.  54. 

2  Ihid.,  p.  61. 


200  GROWTH    OF   THE   ENGLISH   CONSTITUTION    chap,  xvi 

greater  independence  in  the  selection  of  members.  Yet 
the  effort  was  not  successful,  and  the  interference  con- 
tinued throughout  the  century.  In  1431*  a  law  was 
passed  limiting  the  franchise  in  the  choosing  of  knights 
of  the  shire  to  free-holders  worth  forty  shillings  a  year. 
Mr.  Freeman  suggests  that  when  we  take  into  consid- 
eration the  value  of  money  as  compared  with  present 
values,  in  the  place  of  forty  shillings  we  should  read 
forty  pounds.  It  is  probable  that  this  law  did  not  essen- 
tially change  the  practice  in  respect  to  electing  members. 
The  Commons  had  usually  been  chosen  under  the  direc- 
tion of,  or  at  least  under  the  influence  of,  the  King  or 
of  ruling  lords.  Especially  was  this  true  whenever  the 
Commons  were  used  as  an  agency  in  a  political  contest. 

The  Wars  of  the  Roses,  which  began  about  the  middle 
of  the  fifteenth  century  and  continued,  with  many  inter- 
vals, till  the  crowning  of  Henry  VII.  in  1485,  had  a 
marked  effect  upon  the  shifting  and  balancing  of  the 
forces  of  the  government.  The  government,  being  in 
the  hands  of  the  few,  each  party  among  the  warring 
factions  feared  the  people ;  yet  the  Yorkists  were  dis- 
tinctly the  more  popular.  The  insurrection  under  Jack 
Cade  in  1450  is  believed  to  have  been  undertaken  partly 
in  the  interest  of  the  Duke  of  York.  Still,  throughout 
that  cruel  and  bloodthirsty  period  little  heed  was  paid 
to  the  needs  or  the  aspirations  of  the  common  people. 
Lords  with  their  retainers  fought  against  other  lords 
with  their  retainers.  The  victorious  party  often  slew 
the  conquered  without  mercy.  There  were  many  vicissi- 
tudes. Lancastrians  vanquished  Yorkists,  and  were  in 
turn  many  times  vanquished  by  Yorkists.  Not  content 
with  the  slaughters  of  the  battle-field,  the  victors  for  the 
time  being  were  wont  to  call  packed  Parliaments  to  con- 
tinue the  work  of  death  through  bills  of  attainder  and 
confiscations.     A  large  part  of  the  existing  higher  nobil- 


CHAP.  XVI      THE  NOBILITY   WEAKENED  BY  FACTION  201 

ity  was  destroyed,  and  much  of  the  hind  winch  they  had 
held  was  transferred  to  the  surviving  noble  families  or 
to  the  Crown. ^  That  force  which  had  been  from  the  days 
of  William  the  Conqueror  to  this  fatal  era  the  chief  coun- 
terpoise to  the  power  of  the  Crown  was,  so  far  as  such  a 
function  is  concerned,  utterly  swept  away.  After  these 
wars  there  was  never  a  time  when  a  faction  of  the  nobil- 
ity relying  upon  their  own  retainers  could  meet  a  king 
on  equal  terms.  For  generations  after  it  was  impossible  to 
discover  in  the  English  government  any  clearly  defined 
and  effective  counterpoise  to  the  regal  power. 

If  any  such  real  counterpoise  remained,  it  is  to  be 
found  in  the  local  customs,  habits,  and  temper  of  the 
unrepresented  masses  of  the  people.  The  upper  nobility 
was  now  weak ;  the  Church  was  rich  but  timid  ;  the 
lower  nobility  were  without  effective  leaders  or  organi- 
zation. The  masses  of  the  people  could  at  any  time  de- 
stroy the  government,  but  they  could  not  replace  it  with 
another.  They  held  the  effective  power  which  condi- 
tioned the  action  of  future  kings,  but  it  was  chiefly  a 
power  to  destroy. 

The  existing  conditions  may  be  thus  seen  to  have 
favoured  the  centralization  of  power  in  the  hands  of 
kings,  and  a  line  of  monarchs  now  appeared  with  a 
genius  for  gaining  and  holding  power.  If  the  masses  of 
the  people  could,  as  they  did,  improve  their  condition  in 
the  midst  of  destructive  civil  war,  much  more  could  they 
improve  it  if,  while  retaining  all  their  acquired  privileges, 
they  could  at  the  same  time  enjoy  the  comforts  of  peace. 
The  people  naturally  approved  a  strong  and  orderly  gov- 
ernment. The  nobility  and  the  clergy  were  also  disposed 
to  favour  a  strong  hand  lest  an  enraged  nation  should  strip 
them  of  their  privileges. 

1  See  Stubbs,  Constitutional  History  of  England^  Vol.  III.,  p.  15  et 
seq.     Green,  History  of  the  English  People,  Vol.  II.,  p.  7. 


202        GROWTH   OF  THE  ENGLISH  CONSTITUTION      chap,  xvi 

At  the  close  of  the  Wars  of  the  Roses  and  the  begin- 
ning of  the  reign  of  the  Tudors,  the  forms  of  the  Consti- 
tution had  been  determined.  In  the  first  place,  the  House 
of  Commons  had  become  the  recognized  agent  for  voting 
supplies.^  Under  the  three  Lancastrian  kings,  Parlia- 
ments were  constantly  used  as  agents  of  government. 
Edward  IV.  got  a  Parliament  to  vote  him  supplies  for 
life,  and  was  thus  enabled  to  get  along  without  Parlia- 
ments during  much  of  his  reign.  The  grants  made  by 
Parliament  he  supplemented  by  "  benevolences  "  which  he 
exacted  from  the  rich.  A  Parliament  in  the  reign  of 
Richard  III.  made  the  exaction  of  benevolences  illegal. 
The  point  to  be  especially  noticed  here  is  that  the  facts  are 
such  as  to  render  it  easy  to  prove  that  at  this  time  Parlia- 
ment was  a  recognized  taxing  agent,  and  that  in  matters 
of  taxation  the  House  of  Commons  held  the  first  place. 

During  the  weak  rule  of  Henry  VI.  Parliament  adopted 
the  practice  of  introducing  regular  bills  and  passing  them 
through  the  two  Houses  before  presenting  them  to  the 
King  for  his  signature.  Before  that  time  legislation  took 
the  form  of  a  proposition  from  the  King  to  be  approved 
by  Parliament,  or  of  a  humble  petition  from  the  Parlia- 
ment to  be  approved  by  the  King.  Edward  IV.  made  a 
complimentary  speech  at  the  opening  of  his  first  Parlia- 
ment, and  he  promised  to  rule  according  to  the  law.  This, 
it  will  be  observed,  is  a  good  precedent.  It  was  also  a  good 
precedent  when,  almost  a  hundred  years  earlier,  Rich- 
ard II.  in  a  fit  of  parliamentary  fervour  required  his  min- 
isters to  lay  down  their  offices  upon  the  assembling  of 
Parliament,  so  that  Parliament  might  feel  free  to  accuse 
any  one  of  them  of  malfeasance  in  office. ^  All  such  acts 
are  important  because  of  the  support  which  they  give  to 
modern  parliamentary  theories  and  practices. 

1  See  Hearn,  The  Government  of  England^  p.  381. 

2  Gardiner,  Student's  History  of  England.,  Vol.  I.,  p.  280. 


CHAP.  XVI      THE   NOBILITY   WEAKENED   BY  FACTION  203 

Parliament  had  been  made  the  tool  of  all  sorts  of 
high-handed  judicial  and  executive  acts.  It  began  the 
impeachment  of  ministers  in  the  time  of  Edward  III.  ; 
it  was  brought  into  conflict  with  the  judges  in  the  time 
of  Richard  II.;  and  the  events  were  such  as  to  give 
weight  to  the  modern  contention  that  Parliament  is  above 
the  judiciary  in  authority.  An  impeachment  makes  the 
Commons  the  accusers  and  the  House  of  Lords  the  judges. 
The  fierce  contests  of  the  Wars  of  the  Roses  gave  rise  to 
the  summary  destruction  of  men  and  the  confiscation  of 
estates  by  bills,  called  bills  of  attainder,  passed  in  the 
ordinary  way  through  both  Houses.  Time  and  again 
Parliament  had  been  made  the  agent  for  controlling  or 
choosing  the  King's  ministers.  Especially  had  Parliament 
claimed  control  over  the  expenditure  of  money. 


CHAPTER  XVII 

EARLY  TRAINING  FOR  DEMOCRACY 

"T  OOKING  simply  at  the  forms  of  parliamentary  action, 
-^-^  nearly  all  may  be  seen  in  acts  before  Henry  Tudor 
became  king  in  1485.  Green  tells  us  that  nothing  was 
added  to  the  Constitution  after  the  New  Monarchy  (which 
he  dates  from  Edward  IV.)  until  the  century  of  the  Puri- 
tans and  the  Stuarts.^  This  is  true  if  we  are  looking 
simply  for  forms  of  action,  and  for  material  out  of  which 
to  create  the  modern  theory  of  the  powers  of  Parliament. 
The  Parliament  of  the  fifteenth  century  had  everything 
which  we  associate  with  a  modern  Parliament,  except 
power,  influence,  independent  authority,  and  such  a  con- 
nection with  the  nation  at  large  as  to  make  it  a  really  rep- 
resentative, national  institution:  all  of  these  it  lacked. 
Its  hold  upon  the  nation  was  less  direct  and  effective  than 
was  that  of  the  Norman  and  early  Plantagenet  kings. 
These  kings  came  into  intimate  relations  with  their  people 
through  members  of  their  Council,  through  sheriffs  whom 
they  appointed,  through  the  system  of  courts  which  they 
set  up,  and  through  the  fyrd,  or  local  militia.  When  the 
later  Plantagenets  called  representatives  from  the  local 
governments  to  attend  the  meetings  of  the  King's  Council, 
the  act  resulted  in  the  breaking  of  the  nation  into  two 
parts,  leaving  the  greater  part  of  the  people  on  one  side 
and   the   ruling,  privileged   classes   on   the   other.     The 

1  Short  History  of  the  English  People,  p.  303. 
204 


CHAP.  XVII       EARLY  TRAINING  FOR  DEMOCRACY  206 

admission  of  kniglits  and  burgesses  to  the  Council  tended 
to  destroy  rather  than  to  promote  popular  representation. 

But  if  there  had  been  a  loss  in  respect  to  the  relation  of 
the  masses  to  the  King's  Council  and  to  Parliament,  there 
had  been  a  distinct  gain  in  respect  to  their  relations  to 
the  courts.  When  the  Wars  of  the  Roses  broke  out,  the 
people  had  for  centuries  enjoyed  the  benefits  of  the  com- 
mon law  courts,  and  all  through  the  civil  conflict  the 
judicial  processes  went  on  with  little  interruption.  There 
were,  indeed,  many  instances  of  cruelty  and  injustice  per- 
petrated by  juries  and  courts  when  overruled  by  powerful 
classes  ;  yet,  so  far  as  the  masses  of  the  people  were  con- 
cerned, in  their  ordinary  dealings  they  received  a  fair 
degree  of  justice  at  the  hands  of  those  institutions.  The 
common  people  had  become  law-abiding.  It  was  mainly 
the  rulers  only  who  were  lawless,  and,  while  the  lawless 
elements  in  the  nation  were  destroying  each  other  by  civil 
war,  the  ordinary  industries  flourished  and  the  people 
prospered. 

England  had  ceased  to  be  a  nation  of  farmers.  Edward 
IV.  was  called  the  Merchant  Prince.  He  owned  ships  and 
engaged  in  commerce.  More  than  a  hundred  years  earlier 
Edward  III.  had  encouraged  the  importation  of  weavers 
from  Flanders.  The  manufacture  of  woollens  in  endless 
variety  had  grown  up.  Towns  and  cities  were  enlarged 
and  prosperous.  1  Country  folk  had  made  their  way  into 
the  cities,  and  some  of  them  had  risen  to  positions  of 
leadership  in  trade  organizations.  Certain  laws  placed 
upon  the  statute  books  during  this  period  serve  to  show 
the  trend  of  the  changes  in  progress.  One  of  them  was 
designed  to  prevent  labourers  from  leaving  the  farms. 
Ordinances  were  passed  in  the  towns  to  prevent  the  scan- 
dal of   villeins  rising  to  the  position  of   master.      From 

1  For  growth  of  towns ;  see  Ashley's  English  Economic  History, 
Vol.  II.,  Book  II.,  Chap.  I. 


206        GROWTH  OF  THE   ENGLISH   CONSTITUTION    chap,  xvii 

this  time  forward  the  towns  held  a  more  important  place 
in  those  political  contentions  which  resulted  in  the  devel- 
opment of  the  English  Constitution.  With  the  greater 
security  which  came  to  England  with  the  Tudors,  there 
grew  up  among  the  wealthy  townsfolk  the  habit  of  desert- 
ing the  cities  and  establishing  country  residences.  At  the 
close  of  the  Tudor  century  townsfolk  and  middle  class 
countryfolk  were  ready  to  unite  in  opposition  to  the 
monarch. 

It  has  been  already  remarked  that  the  working  of  the 
present  Constitution  is  dependent  upon  the  state  of  mind 
of  the  people,  and  one  element  in  that  attitude  and  temper 
which  is  of  the  utmost  importance  is  the  essential  con- 
servatism which  prevails  to-day  among  all  classes.  It  is 
not  easy  to  account  for  the  peculiar  temper  of  a  nation ; 
but  in  a  study  of  the  characteristics  of  the  English  people 
at  the  close  of  the  fifteenth  century,  large  account  should 
be  taken  of  the  fact  that  for  many  centuries  an  orderly 
government  had  been  maintained  by  means  of  the  com- 
mon law  courts,  and  of  this  other  fact  that  the  dwellers 
in  towns  and  cities  were  the  subjects  of  a  great  variety  of 
political  and  social  experiences.  The  Norman  kings  set 
the  example  which  other  monarchs  followed  of  granting 
charters  to  towns  and  cities.  Under  royal  patronage  the 
freemen  in  the  towns  were  protected  from  the  brutality 
of  feudal  despotism,  and  gained  much  practice  in  various 
forms  of  self-government.  They  were  organized  into 
trade  and  craft  guilds.  No  man  stood  alone.  All  were 
bound  together  in  cooperative  enterprises.  Difficulties 
between  the  town  corporations  and  the  guilds,  and  be- 
tween the  guilds  in  their  relations  to  each  other,  were 
continually  arising  and  demanding  adjustment.  Within 
the  guilds  were  masters  and  apprentices  between  whom 
were  many  disputes  requiring  settlement.  From  the 
middle  of  the  fourteenth  century  there  existed  a  distinct 


CHAP.  XVII       EARLY   TRAINING  FOR   DEMOCRACY  207 

class  of  journeymen,  or  wage  receivers.^  These  formed 
themselves  into  labour  organizations,  and  for  generations 
there  was  conflict  between  the  organizations  of  labourers 
and  those  of  employers. 

The  religious  element  also  contributed  to  the  friction 
between  classes  and  orders.  Religious  fraternities  and 
other  societies  abounded  among  the  laity,  and  the  reli- 
gious motive  was  a  leading  feature  in  all  the  industrial 
organizations.  Many  of  the  later  guilds  grew  out  of 
the  religious  brotherhoods,  so  that  a  single  society  came 
to  provide  for  the  secular  interests  of  a  trade,  while  at 
the  same  time  it  maintained  a  priest  to  pray  for  the 
souls  of  the  members,  supported  a  chapel  with  lights  per- 
petually burning  before  the  altar,  performed  a  religious 
play  at  stated  seasons,  and  managed  charitable  funds  for 
the  benefit  of  their  members  and  dependents.  Especially 
was  the  religious  motive  prominent  in  the  labour  organiza- 
tions. Masters  complained  that  the  workmen  were  seek- 
ing to  raise  their  wages  under  the  guise  of  piety.  The 
religious  brotherhood  which  spread  from  the  towns  to  the 
country  contributed  to  the  development  of  a  lower  middle 
class  in  the  villages. 

While  liveries  were  playing  such  a  conspicuous  part  in 
the  later  phases  of  the  feudal  system,  there  sprang  up  in 
the  cities  and  towns  liveried  associations,  made  up,  at  first, 
of  a  limited  membership  from  societies  already  existing, 
but  not  cut  off  from  the  company,  or  craft,  of  which  the 
livery  constituted  the  aristocracy. 

Now  it  may  be  wide  of  the  mark  to  say  that  the  cen- 
turies of  experience  in  the  common  law  courts,  and  in 
the  many  organizations  which  embraced  a  large  proportion 
of  the  people,  accounts  for  that  peculiar  quality  of  char- 
acter which  enables  the  modern  English  to  maintain  their 
delicately  poised  Cabinet  system,  —  especially  as  the  com- 
1  See  Ashley,  English  Economic  History .^  Vol.  II.,  p.  101. 


208        GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xtii 

munal  and  guild  institutions  were  common  to  England, 
France,  and  Germany,  —  yet  we  can  readily  believe  that 
those  experiences  have  had  much  influence  in  the  forma- 
tion of  national  characteristics.  By  means  of  them  large 
numbers  of  people  gained  practice  in  political  affairs, 
learned  self-control,  and  acquired  the  habit  of  effectual 
cooperation. 

As  the  government  of  counties  and  hundreds  became 
more  exclusive,  that  is,  came  to  be  controlled  by  fewer  per- 
sons, so  there  was  likewise  a  similar  movement  in  all  or- 
ganizations of  every  name.  The  early  guilds  were  for 
the  most  part  associations  of  equals  ;  in  later  times  the 
authority  within  them  came  to  be  wielded  by  the  few. 
The  journeyman  societies  were  all  either  destroyed  or 
brought  into  subjection  to  the  craft,  or  company,  in  con- 
nection with  which  (and,  in  a  sense,  in  opposition  to 
which)  they  had  arisen. ^  In  the  religious  societies  and 
in  the  municipal  corporations,  also,  authority  became  more 
and  more  centralized  in  a  few  hands. 

Probably  language  is  used  entirely  amiss  when  any  of 
these  early  organizations  are  spoken  of  as  being  demo- 
cratic at  any  period.  It  is  a  more  accurate  form  of  speech 
to  say  of  the  early  governments  of  the  counties,  hundreds, 
and  towns,  and  of  the  early  guilds,  that  they  would  be 
democratic  if,  with  corresponding  forms  of  organization, 
they  existed  at  the  present  day.  But  in  the  olden  time 
the  ideas  out  of  which  modern  democracy  grows  were 
wholly  wanting  in  the  minds  of  the  people.  There  was 
probably  no  more  real  democracy,  as  now  defined,  in  the 
rude  primitive  age  when  the  greater  part  of  the  people 
did  the  same  things,  and  were  related  to  each  other  as 
equals,  than  in  the  later  ages  when  greater  diversity  ap- 
pears, and  the  relations  were  those  of  higher  and  lower 

1  For  an  interesting  account  of  these  societies,  see  Ashley's  English 
Economic  History,  Vol.  II.,  p.  117  seq- 


CHAP.  XVII       EARLY  TRAINING   FOR   DEMOCRACY  209 

ranks.  The  change  simply  indicated  greater  wealth  and 
a  further  division  of  labour.  It  was  then  held  to  be  the 
business  of  some  men  to  govern,  and  there  was  a  tendency 
in  all  the  voluntary  societies,  as  well  as  in  cities  and  coun- 
ties, for  the  exercise  of  authority  to  become  hereditary. 
Political  strife  went  on  in  all  the  ranks  of  life,  not  because 
of  the  existence  of  a  spirit  of  democracy,  but  rather  because 
of  the  continual  conflict  of  class  interests. 

Nothing  can  be  more  helpful  in  promoting  a  correct 
understanding  of  the  existing  democratic  Constitution  of 
England  than  a  clear  apprehension  of  the  fact  that  the  ideas 
now  expressed  by  the  word  "  democracy  "  are  altogether 
new  in  the  world's  history.  Merely  that  the  word  is  old 
is  no  indication  that  its  meaning  is  old.  To  the  mind  of 
the  Greeks  who  gave  us  the  term,  Demos  meant  a  privi- 
leged class.  It  was  a  striking  characteristic  of  the  Athe- 
nian democracy  that  nine-tenths  of  the  people  were  ignored 
by  the  ruling  classes.  The  slaves  of  the  Greeks  were 
often  of  their  own  race  —  their  own  flesh  and  blood  ;  yet 
the  moral  code  of  the  Greeks  treated  the  slave  as  other 
than  a  human  being.  A  classical  Greek  with  a  Salvation 
Army  conscience  is  an  utterly  unthinkable  being. 

American  annals  record  a  memorable  sentence  which, 
with  accompan3dng  events,  well  illustrates  this  contrast 
of  view  in  different  ages.  In  1857  the  Chief  Justice  of 
the  Supreme  Court  of  the  United  States  in  rendering  an 
important  judicial  decision  gave  utterance  to  these  words: 
"  The  negro  has  no  rights  which  the  white  man  is  bound 
to  respect."  To  the  mind  of  the  classically  trained  law- 
yer the  statement  was  true  in  fact  and  correct  in  law. 
The  speaker  attributed  the  sentiment  to  the  statesmen  of 
the  previous  century,  and  —  with  individual  exceptions  — 
their  views  were,  no  doubt,  fairly  represented.  But  the 
words  of  the  Chief  Justice  fell  upon  the  ears  of  men  of 
a  different  spirit,  men  brought  by  the  onward  march  of 


210        GROWTH  OF   THE   ENGLISH   CONSTITUTION    chap,  xvii 

civilization  and  the  growth  of  humane  and  Christian  feel- 
ing into  an  attitude  of  revolt  toward  the  coarse  brutality 
and  pagan  heartlessness  which  the  words  embodied.  In 
less  than  twenty  years  from  that  day  the  Negroes  of  the 
United  States  were  not  only  in  possession  of  all  the  rights 
of  manhood  and  citizenship,  but  they  were  also  in  control 
of  the  legislatures  of  many  of  the  Southern  states  and 
were  making  laws  which  white  men  are  still  bound  to 
obey. 

Democracy  was  a  term  of  reproach  to  the  statesmen 
who  framed  the  early  American  constitutions.  The  new 
ideas  which  the  word  now  represents  were  then  finding 
utterance ;  and,  while  no  objection  was  brought  against 
the  ancient,  classical  meanings,  the  modern  notions  of 
democracy  were  heard  only  to  be  rejected  and  condemned. 
Only  in  the  rare,  exceptional  mind  did  this  new  thought 
become  a  conviction  earlier  than  the  present  century. 
Now,  that  view  of  democracy  represented  by  Thomas 
Jefferson  has  been  for  a  century  gradually  filtering  into 
the  American  mind.  The  momentous  revolution  —  for  it 
is  nothing  less  —  has  come  and  is  coming  to  the  American 
without  observation. 

To  the  Englishman  the  case  is  wholly  different.  The 
introduction  of  the  new  idea  of  democracy  has  been  ac- 
companied by  certain  specific  acts.  Now,  if  there  were 
nothing  to  be  accounted  for  in  the  present  English  Con- 
stitution except  the  democratic  theory  and  those  govern- 
mental institutions  which  are  in  harmony  with  it,  the  easy 
way  to  accomplish  that  would  be  to  go  witli  the  multi- 
tude and  call  everything  democratic  in  the  past  history  of 
Enofland  which  admits  of  such  a  construction.  But  it  is 
necessary  also  to  account  for  the  Crown,  the  House  of 
Lords,  and  a  formal  constitution  which  appears  to  con- 
tradict in  many  ways  the  democratic  constitution.  To 
explain  this  apparent  contradiction  it  is  necessary  to  use 


CHAP.  XVII       EARLY  TRAINING   FOR    DEMOCRACY  211 

discrimination  in  respect  to  the  meaning  of  words,  —  to 
avoid  as  far  as  possible  the  confusion  arising  from  employ-  • 
ing  the  same  words  with  a  variety  of  meanings.  When 
we  apply  the  term  "  democracy  "  to  the  ancient  English 
counties,  hundreds,  towns,  guilds,  and  religious  societies, 
we  mean  by  it  something  wholly  different  from  its  mean- 
ing when  applied  to  the  modern  Constitution.  All  careful 
historians  will  admit  that  the  earlier  democracy,  so-called, 
was  without  a  clearly  defined  theory  of  the  right  of  all  to 
participate  in  the  government.  But  it  is  this  clearly 
defined  theory  Avhich  is  the  essential  element  in  the  new 
democracy. 

The  distinction  is  so  important  that,  at  the  risk  of 
being  tedious,  I  venture  to  introduce  one  more  illustra- 
tion. Among  the  mountains  of  Switzerland  are  found 
little  pure  democracies  which  seem  to  link  the  govern- 
ment of  the  ancient  primeval  tribe  to  the  Swiss  constitu- 
tion of  1848.  There  is,  however,  no  satisfactory  evidence 
that  democracy  in  the  modern  sense  of  the  word  existed 
anywhere  in  Switzerland  much  earlier  than  1848.  At  any 
previous  time,  wherever  the  men  who  composed  the  little 
local  democracies  were  led  to  take  part  in  a  government 
outside  of  their  ancient  prescriptive  rule,  they  have  acted 
in  ways  quite  undemocratic.  They  have  shown  no  pre- 
dilection in  favour  of  democratic  forms  ;  they  have  con- 
fined the  privilege  of  governing  to  the  hands  of  the 
conveniently  few.  It  was  the  French,  at  the  close  of  the 
last  century,  who  compelled  the  close  oligarchies  which 
composed  the  governments  of  the  thirteen  ruling  cantons 
to  cease  to  play  the  tyrant  over  the  eight  subject  cantons. 
And  after  the  Napoleonic  wars  it  was  the  monarchies  of 
Europe  which  compelled  the  thirteen  oligarchies  to  admit, 
into  the  Confederation  on  equal  terms  the  remaining 
nine  cantons.  So  in  Switzerland,  as  elsewhere,  modern 
democracy  is  distinctly  modern. 


212        GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xvii 

It  must  of  course  be  admitted  that  the  ancient,  cus- 
•tomary  democratic  ways  of  the  Swiss  are  of  immense  im- 
portance in  their  relation  both  to  the  origin  and  to  the 
practical  working  of  the  modern  democratic  theory,  just 
as  a  corresponding  experience  of  the  English  people  in 
their  early  local  governments  in  the  guilds,  in  the  various 
societies,  religious  and  industrial,  and  especially  in  the 
working  of  the  jury  system,  is  of  great  importance  to  any 
theory  accounting  for  the  modern  democratic  Constitution. 
But  it  must  not  on  this  account  be  forgotten  that  modern 
democracy  is  something  quite  distinct  and  different  from 
the  ancient  Grecian  type  and  from  the  customary  democratic 
habits  of  the  Middle  Ages. 


CHAPTER  XVIII 

HENKY  Vn. 

A  S  to  how  much  was  added  to  the  effective  power  of 
■^-^  Parliament  during  the  reign  of  the  Tudor  kings 
historians  are  not  agreed.  Those  who  are  not  careful  to 
distinguish  between  forms  of  Parliamentary  action  and 
effective  Parliamentary  power  based  upon  public  opinion 
—  that  is,  upon  a  definite  theory  of  the  power  of  Parlia- 
ment as  a  representative  national  institution  —  are  likely 
to  hold  the  opinion  that  almost  nothing  was  added  during 
this  period.  But  when  proper  distinctions  are  held  be- 
tween form  and  substance,  the  view  is  likely  to  prevail 
that  the  real  foundation  for  the  modern  Parliament  was 
laid  during  the  century  of  the  Tudors.  Before  this  cen- 
tury there  had  never  been  a  Parliament  which  was  looked 
upon  as  centring  in  itself  the  power  of  the  nation  inde- 
pendently of  the  will  of  the  Monarch  ;  there  had  never 
been  a  Parliament  which  was  not  a  mere  formal  agent  for 
transacting  necessary  business,  or,  at  most,  a  mere  tool  in 
the  hands  of  a  faction.  At  the  end  of  the  Tudor  century 
there  was  a  Parliament  which  was  generally  felt  to  repre- 
sent the  views  of  a  powerful  class  which  called  itself  the 
nation.  Elizabeth  was  a  wise  and  successful  ruler,  but 
it  was  everywhere  observed  that  Parliament  had  a  will  of 
its  own  which  was  not  always  in  harmony  with  the  will 
of  the  Queen.  It  was  something  new  in  English  history 
when  a  successful  monarch  could  not  control  the  action  of 

213 


214       GROWTH  OF  THE   ENGLISH  CONSTITUTION    chap,  xviii 

Parliament.  We  are  accustomed  to  say  that  Elizabeth 
showed  her  wisdom  in  yielding  to  the  wishes  of  Parlia- 
ment, and  that  the  Stuarts  showed  their  stupidity  in 
stubbornly  refusing  to  yield. 

Before  the  time  of  Elizabeth,  or  at  least  before  that  of 
Henry  VIII.,  it  would  have  been  absurd  to  talk  of  a  pow- 
erful monarch  manifesting  wisdom  by  yielding  to  a  Parlia- 
ment or  a  national  assembly.  Before  the  Wars  of  the 
Roses  the  only  thing  which  a  sensible  monarch  yielded  to 
was  an  army.  Those  who  fail  to  distinguish  between  form 
and  substance  may  say  that  John  yielded  to  a  national 
assembly  at  Runny mede.  To  such  as  hold  the  view  that 
a  legislative  assembly  forced  the  King  to  yield  to  its 
demands,  the  last  clause  in  Magna  Charta  must  appear  a 
huge  joke.  The  first  step  towards  a  correct  understand- 
ing of  the  development  of  the  English  Constitution  cannot 
be  taken  by  one  who  does  not  understand  that  the  last 
clause  in  the  charter  was  not  a  joke  at  all.  If  we  regard 
substance  rather  than  form,  the  body  of  twenty-five  barons 
who  were  appointed  to  make  war  upon  the  King,  and  to 
compel  him  to  observe  the  provisions  of  the  charter,  bore 
a  closer  resemblance  to  a  modern  Parliament  than  did  the 
assembly  which  appointed  them.  The  twenty-five  barons 
were  looked  upon  as  having  a  will  apart  from  the  will  of 
the  Monarch.  They  were  regarded  as  representing  in 
this  respect  the  wishes  of  the  ruling  classes  as  opposed  to 
the  views  of  the  King.  It  should  never  be  forgotten  that 
previous  to  the  Wars  of  the  Roses,  whenever  there  was 
an  attempt  to  govern  otherwise  than  according  to  the 
King's  wish,  a  small  body  was  chosen  for  this  purpose. 
In  some  instances  this  small  body  formally  displaced  the 
national  assembly.  But  the  kings  were  expected  to 
yield  neither  to  the  smaller  body  nor  to  the  larger  body ; 
they  were  simply  expected  to  yield  to  a  superior  army. 
To  make  war  upon  the  King  was  the  regular,  and  we  may 


CHAP.   XVIIl 


HENRY    VII.  215 


say  the  constitutional,  method  of  restraining  him.  It  was 
likewise  regular,  and  in  a  sense  constitutional,  for  the 
King  to  destroy  any  one  who  made  bold  to  dispute  his 
will  in  the  national  assembly.  Public  opinion  had  no 
organ,  and  hence,  as  an  effective  force  in  the  modern 
sense,  public  opinion  did  not  exist. 

Such  was  the  state  of  affairs  at  the  beginning  of  the 
Tudor  rule.  At  the  end  of  the  reign  of  Elizabeth,  Eng- 
land was  governed  in  large  part  by  public  opinion ;  and 
the  recognized  organ  of  public  opinion  was  the  Parlia- 
ment. Parliament  itself  came  to  be  looked  upon  as  rep- 
resenting the  nation,  and  as  having  a  will  of  its  own  apart 
from  the  will  of  the  Monarch.  There  is  involved  in  this 
change  the  essential  idea  of  the  Great  Revolution.  If  we 
do  not  distinguish  between  form  and  substance,  we  may 
suppose  that  when  Parliament  uncrowned  James  IL  and 
crowned  William  and  Mary,  it  did  nothing  more  than 
Parliaments  or  national  assemblies  had  done  many  times 
before.  The  Revolution  of  1688  was  not  great  because  of 
what  Parliament  did ;  it  was  great  because  it  was  distin- 
guished from  all  previous  similar  acts  on  account  of  the 
new  views  which  had  come  to  be  held  as  to  the  place  of 
Parliament  in  the  government.  These  new  views  came 
into  existence  during  the  previous  century.  We  should 
expect,  therefore,  to  find  in  the  Tudor  century  rather 
than  in  that  of  the  Stuarts  the  psychology  of  the  Great 
Revolution. 

Gardiner  says  that  England  needed  a  chief  constable 
and  that  Henry  VII.  furnished  what  was  needed.  There 
had  been  a  generation  of  violence  and  civil  war,  and  there 
was  now  an  unusual  desire  for  some  one  to  keep  order. 
Notwithstanding  the  fact  that  many  great  lords  had  been 
destroyed  in  the  wars,  there  were  still  many  remaining. 
It  was  an  easy  matter  to  make  new  lords  to  take  the  place 
of  all  who  had  been  destroyed.      But  the  Tudor  kings 


216       GROWTH  OF  THE  ENGLISH  CONSTITUTION    chai>.  xviii 

seemed  to  see  that  it  was  not  to  their  advantage  to  restore 
the  power  of  the  great  families.  It  was  rather  to  their 
interest  to  see  to  it  that  independent  feudal  leadership 
should  never  be  regained.  To  do  this,  they  needed  the 
constant  support  of  powerful  classes,  other  than  the  great 
feudal  lords.  Henry  VII.  relied  for  support  chiefly  upon 
the  country  gentlemen,  upon  lawyers,  and  the  well-to-do 
middle  classes  in  towns  and  cities.  He  had  also  the  sup- 
port of  the  clergy. 

For  more  than  a  hundred  years  there  had  been  laws 
against  liveries,  yet  during  the  entire  period  the  use  of 
liveried  men  had  flourished.  Henry  VII.  laid  a  strong 
hand  upon  this  practice  and  suppressed  it,  thus  aiming 
a  severe  blow  at  the  independent  power  of  great  lords. 

It  had  long  been  the  practice  of  the  powerful  nobles  to 
interfere  with  the  ordinary  courts,  to  overawe  judges, 
to  terrorize  juries,  and  in  many  ways  violently  to  inter- 
rupt the  course  of  justice.  Henry  VII.  hit  upon  a  method 
of  effectually  restraining  these  acts.  He  established  a 
court  which  the  lords  could  not  overawe.  From  the 
time  when  the  courts  took  permanent  form  under  Ed- 
ward I.  there  had  been  a  remnant  of  judicial  business  in 
the  hands  of  the  King  and  his  Council.  Courts  of  equity 
had  been  built  up  out  of  this  remnant  of  judicial  power. 
The  ordinary  courts  tended  to  limit  the  power  of  the 
kings,  hence  the  sovereigns  naturally  clung  to  the  judicial 
power  in  the  Council. 

Henry  constituted  a  court  out  of  the  Council  and  two 
judges  especially  appointed,  which  had  an  important  part 
in  the  government  of  England  for  a  century  and  a  half.  It 
is  called  the  Court  of  the  Star  Chamber,  and  it  was  always 
an  arbitrary  power  in  the  hands  of  the  King.  Henry  VII. 
used  this  court  as  a  means  of  restraining  or  destroying  the 
great  lords.  He  found  that  taxation  was  unpopular  among 
the  middle  classes  on  whom  he  chiefly  relied  for  his  sup- 


CHAP,  xviii  HENRY  VII.  217 

port ;  so  he  resorted  to  the  method  of  exacting  money 
from  the  rich  by  means  of  his  Court  of  the  Star  Chamber. 
Henry  was  a  great  stickler  for  the  forms  of  law  ;  and  a 
law  had  been  passed  in  the  time  of  Richard  III.  against 
exacting  benevolences.  Henry,  however,  held  that  this 
was  no  law,  since  Richard  was  a  usurper,  and  he  con- 
tinued to  raise  large  sums  by  exacting  benevolences  from 
the  rich.  Other  large  sums  he  secured  by  fines  and  con- 
fiscations. Thus  he  accumulated  a  full  treasury  and  left 
it  to  his  son.  He,  moreover,  maintained  a  policy  of  peace 
and  order  and  economy. 

Henry  VII.  was  a  good,  virtuous  tyrant.  He  paid 
little  attention  to  Parliament  during  his  reign,  which  lasted 
twenty-four  years.  There  is  evidence  that  his  tyranny, 
virtuous  as  it  was,  would  have  broken  down  had  it  been 
longer  continued.  His  tools  of  the  Star  Chamber,  Emp- 
son  and  Dudley,  were  speedily  executed  by  the  new  King 
in  response  to  a  popular  demand. 

I  admit  that  it  requires  an  effort  to  see  in  the  reign  of 
Henry  VII.  much  of  the  theory  of  the  modern  English 
Constitution.  But  there  is  in  this  reign  one  thing  which 
should  never  be  lost  sight  of.  It  might  easily  have  hap- 
pened that  the  great  lords  during  this  period  should  have 
regained  much  of  their  lost  power.  Henry  might  very  nat- 
urally have  rested  for  support  upon  them  instead  of  upon 
a  larger  number  of  middle-class  folk.  Had  he  done  this, 
there  is  reason  to  believe  that  the  habit  of  going  to  war 
against  the  King  would  have  continued.  But  Henry  VII. 
initiated  a  policy  which  was  fatal  to  the  leadership  of  the 
great  lords.  This  policy  was  continued  and  perfected  by 
Henry  VIII.  Had  this  work  been  less  thoroughly  done, 
it  is  not  likely  that  there  could  have  been  a  century  with- 
out civil  war.  If  there  had  not  been  a  century  of  govern- 
ment according  to  the  forms  of  law,  it  is  not  likely  that 
the  Stuart  kings  would  have  been  called  upon  to  face  that 


218       GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xviii 

state  of  the  public  mind  whicli  actually  confronted  them. 
It  is  in  this  rather  remote  way  that  Henry  VII.  may  be 
said  to  have  contributed  to  the  formation  of  the  state  of 
mind  out  of  which  the  peculiar  Constitution  of  England 
is  constructed. 

The  financial  policy  of  the  Tudor  kings  had  also  much 
to  do  with  the  disappearance  of  the  leadership  of  the 
higher  nobility.  In  the  olden  time,  before  Edward  I. 
had  called  representatives  from  counties,  towns,  and  cities 
to  attend  the  meetings  of  his  great  Council,  there  was  at 
least  some  sort  of  close  relation  between  the  King's  gov- 
ernment and  the  masses  of  those  who  paid  the  taxes. 
The  old  county  courts  which  yielded  to  the  demands  of 
the  King  for  money  and  regulated  the  amounts  did  in  an 
important  sense  represent  the  people  who  paid  the  taxes. 
The  House  of  Commons  had  never  in  the  same  sense 
represented  the  people.  At  the  close  of  the  Wars  of  the 
Roses,  the  House  of  Commons  had  long  been  a  tool  in 
the  hands  of  one  or  other  of  the  warring  factions ;  hence 
it  could  not  in  the  old  manner  grant  supplies  and  carry 
with  the  grant  the  consent  of  the  tax-payers.  The  grant- 
ing of  supplies  had  come  to  be  habitually  associated  with 
victorious  armies  as  a  part  of  the  fighting  business. 
Henry  VII.  stirred  up  a  formidable  rebellion  in  Cornwall 
by  an  attempt  to  collect  a  subsidy  which  had  been  regu- 
larly voted  by  Parliament. ^  A  vote  of  supplies  by  Parlia- 
ment did  not,  therefore,  carry  with  it  the  acquiescence  of 
the  people. 

Taxation  was  the  one  point  which  the  masses  of  the 
people  seem  to  have  considered  worth  fighting  about.^ 
It  was  from  the  action  of  these  masses,  Avhom  the  Parlia- 
ment did  not  represent,  that  the  King  learned  that  the 
attempt  to   collect  a  general  tax  was  a  dangerous  busi- 

1  Hume,  History  of  England,  Vol.  III.,  p.  51. 

2  Hallam,  Constitutional  History^  Vol.  I.,  p.  28. 


CHAP.  XVIII  HENRY  VII.       .  219 

ness.  It  seemed  to  be  safer,  more  in  accordance  with 
the  will  of  the  nation,  to  take  money  from  the  rich  by 
means  of  the  Star  Chamber  than  to  levy  a  tax  upon  the 
nation  at  large  by  means  of  Parliament.  The  fact  that 
Henry  VII.  called  few  Parliaments  by  no  means  argues 
that  he  was  unmindful  of  the  will  of  the  nation.  In- 
deed, the  King  seemed  to  represent  the  nation  better 
than  the  Parliament.  The  same  has  been  said  of  Henry 
VIII.  and  of  Elizabeth.  If  this  is  true,  we  have  the  re- 
markable occurrence  of  more  than  a  hundred  years  of 
practically  consecutive  history  in  which  national  repre- 
sentative government  coincided  with  the  person  of  the 
Monarch.  During  this  time  there  had  been  slowly  built 
up  an  institution  which  would  be  capable  of  representing 
the  nation  when  a  family  of  monarchs  should  arise  who 
failed  to  do  so. 


CHAPTER  XIX 

HENRY  Yin.   AND  THE  REFOEMATION 

TZrENRY  VIII.  was  more  completely  the  man  of  his 
-^ — *-  time  than  any  person  in  his  realm.  He  ruled 
thirty-eight  years,  and  the  England  of  the  beginning 
differed  much  from  the  England  of  the  close  of  his 
reign.  At  the  beginning,  the  Church  in  England  was 
a  part  of  the  Western  European  Church  with  the  Pope 
of  Rome  at  its  head.  At  the  close  the  English  Church 
stood  dissevered  from  all  connection  with  Rome,  the 
religious  houses  had  been  destroyed,  a  large  part  of 
the  ecclesiastical  property  had  been  confiscated,  and  the 
clergy  had  been  subordinated  to  the  will  of  the  King 
and  the  Parliament.  The  people  had,  in  the  meantime, 
greatly  modified  their  views  in  the  direction  of  Protes- 
tantism. Great  changes  had  likewise  taken  place  in  the 
occupations  and  industries  of  the  people,  and  it  was  the 
age  preeminently  affected  by  the  New  Learning.  To 
represent  such  an  age  for  so  long  a  time  requires  a  pecul- 
iar personality.  Ever  since  that  era  an  unceasing  debate 
has  raged  respecting  the  character  of  King  Henry  VIII. 
both  as  a  man  and  a  statesman,  and  there  seems  no  pros- 
pect of  its  ever  coming  to  an  end.  A  man  who  was  so 
large  a  part  of  an  age,  so  full  of  the  spirit  of  change,  so 
marked  by  the  effervescence  of  new  ideas,  an  age  which 
clung  to  the  old  while  at  the  same  time  reaching  forth 


CHAP.  XIX      HENRY  VIII.    AND   THE   REFORMATION  221 

to  the  new,  will  not  be  readily  understood  by  after 
generations. 

Henry  secured  the  services  of  men  of  eminent  ability, 
among  the  most  noted  of  whom  were  Wolsey,  More,  and 
Thomas  Cromwell.  Wolsey  brought  the  power  of  the 
Roman  Church  to  the  support  of  the  Crown.  Sir  Thomas 
More  was  the  most  brilliant  representative  of  the  New 
Learning,  and  he  was  made  Chancellor  during  the  brief 
period  of  transition  from  the  dominance  of  Wolsey  to  the 
final  break  with  Rome.  Cromwell  was  the  chief  minister 
of  the  Reformation.  Each  of  these  able  and  powerful 
ministers  was  in  turn  sacrificed  to  the  King's  will.  It 
is  unaccountable  that  Henry  should  have  compassed  the 
death  of  so  many  influential  persons  while  at  the  same 
time  he  continued  to  grow  more  popular  with  all  classes. 
It  was  a  time  when  all  in  the  kingdom,  except  the  King 
alone,  were  made  to  feel  the  force  of  law.  The  lower 
classes  had  long  been  subject  to  law ;  now  queens, 
bishops,  and  nobles  of  every  rank  were  made  to  feel 
that  they  too  were  subject  to  the  same  higher  power. 

But  even  under  a  monarchy  so  absolute  as  that  of  Henry 
VIII.  careful  research  reveals  certain  indications  of  posi- 
tive movements  in  the  direction  of  modern  democracy. 
Sir  Thomas  More  was  during  the  early  years  of  his  reign 
the  familiar  companion  and  friend  of  the  young  Prince, 
and  it  was,  in  1516,  that  Utopia  appeared.  In  that 
work  we  have  a  distinct  announcement  of  some  of  the 
principles  of  modern  democracy,  a  clear  intimation  that 
the  government  of  England  was  in  fact  a  conspiracy  of 
the  rulers  against  the  people.  It  is  undoubtedly  easy  to 
overestimate  the  importance  of  such  a  publication.  The 
advanced  thought  of  purely  literary  labou-rers  has  had, 
perhaps,  less  to  do  with  the  world's  progress  than  is  gen- 
erally believed.  It  would  be  rash  to  claim  or  to  imagine 
any  general  or  even  any  wide  acquaintance  with  the  book 


222         GROWTH   OF  THE   ENGLISH  CONSTITUTION    chap,  xix 

Utopia  for  that  or  any  other  age.  Something  may, 
however,  be  credited  to  the  influence  upon  the  mind  of 
the  King  in  his  susceptible  years  of  views  so  full  of  that 
seminal  power  which  insures  growth.  Henry  was  cer- 
tainly no  modern  democrat ;  but  he  did  with  marked  ef- 
fect and  with  steady  persistence  what  other  kings  had 
done  before  him :  he  looked  to  the  unrepresented  classes 
of  the  people  for  support. 

It  was  a  time  of  notable  alterations  in  the  industrial 
life  of  the  people.  The  change  from  tillage  to  pasture 
began  about  the  time  of  the  Wars  of  the  Roses  and  con- 
tinued through  the  time  of  Henry  VIII.  This  involved  in 
some  cases  the  forcible  expulsion  of  some  of  the  tenants 
from  their  holdings.  There  is  evidence  that  the  Yorkists 
gained  strength  by  espousing  the  cause  of  the  dispossessed 
peasants,  and  that  the  Tudors  followed  the  Yorkist  policy 
in  that  regard.  In  1517,  one  year  after  the  publication 
of  Utopia^  Henry  appointed  a  commission  to  examine 
into  the  matter  of  enclosures,  and  upon  the  report  of  this 
commission  the  government  took  such  summary  action 
against  the  landlords  as  struck  terror  among  them. 
*'  From  this  time  the  idea  of  a  royal  commission  was  never 
absent  from  the  minds  of  the  politicians."  ^  It  should  be 
observed  that  the  institution  of  a  royal  commission  was  in 
a  sense  a  revival  of  the  ancient  direct  appeal  of  kings  to 
the  people,  and  of  the  people  to  the  kings,  against  the 
local  oppressors.  In  this  case  the  commission  intervened 
on  behalf  of  the  lower  orders  of  the  people. 

Coincident  with  the  suppression  of  liveries  and  the  es- 
tablishment of  the  reign  of  law,  population  shifted  from 
the  towns  to  the  country.  Manufactures  arose  in  the 
rural  districts ;  and,  by  comparison,  the  towns  were  less 
prosperous  than  formerly.  Much  suffering  and  discon- 
tent ensued  as  an  incident  to  so  many  changes,  and  the 
1  Ashley,  English  Economic  History,  Vol.  II.,  p.  283. 


CHAP.  XIX      HENRY    VIII.    AND   THE   REFORMATION  223 

existence  of  large  numbers  of  discontented  people  among 
the  lower  classes  made  it  easier  for  the  King  to  deal  with 
the  ruling  orders  as  he  pleased. 

But  the  subject  which  interested  the  masses  of  the  peo- 
ple more  than  all  others,  and  affected  them  most,  was  that 
of  religion.  It  has  been  already  stated  that  in  all  their 
organizations,  municipal,  industrial,  and  friendly,  religious 
motives  and  religious  practices  held  a  prominent  place. 
For  centuries  there  had  been  a  tendency  to  divergence 
between  the  official  clergy  and  that  religious  teaching 
which  actually  affected  the  masses  of  the  common  people. 
Among  the  first  publications  of  the  new  printing-press 
were  Wiclif's  tracts,  which  had  during  the  intervening 
century  been  kept  in  circulation  in  manuscript.  There 
were  Lutherans  in  England  long  before  there  was  a 
Luther.  This  state  of  religious  sentiment  among  the 
masses  was  a  factor  of  great  importance  in  the  work  of 
destroying  the  independent  power  of  the  clergy  by  means 
of  King  and  Parliament.  The  ancient  antipathy  between 
lords  and  clergy  was  also  an  element  of  support  to  the 
King  when  the  great  struggle  came  on.  The  fact,  however, 
of  especial  significance  here,  in  an  attempt  to  account  for 
the  modern  Constitution,  is  the  interest  of  the  common 
people  in  matters  of  religion. 

The  most  formidable  insurrection  which  Henry  VIII. 
was  called  to  face  grew  out  of  a  religious  controversy. 
In  1536,  when  the  destruction  of  the  religious  houses  was 
well  advanced,  the  people  of  the  northern  English  coun- 
ties were  led  to  believe  that  all  the  institutions  of  religion 
were  to  be  overthrown  and  all  church  property  confiscated. 
The  complaint  which  was  made  the  basis  of  the  rising 
included  matters  of  taxation  and  changes  in  the  land  laws 
as  well  as  the  spoliation  of  the  Church ;  but  it  was  the 
religious  policy  which  was  the  chief  object  of  attack. 
The  "Pilgrimage  of  Grace,"  as  it  was   called,    received 


224  GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xix 

the  support  of  the  great  body  of  the  population  in  the 
region  affected.  It  was  directed  not  against  the  King,  but 
against  his  evil  advisers.  Henry  adroitly  accomplished 
the  dispersion  of  the  insurgents  without  bloodshed,  and 
then  proceeded  leisurely  to  the  execution  of  the  leaders. 
From  this  time  forward  it  was  questions  of  religion  rather 
than  of  taxation  that  stirred  most  profoundly  the  sensi- 
bilities of  the  English  people. 

The  first  Parliament  of  Henry  VIII.,  in  voting  the 
usual  grants  and  tonnage  and  poundage  to  the  King  for 
life,  inserted  in  its  record  "  that  these  grants  be  not  taken 
in  example  to  the  kings  of  England  in  time  to  come." 
We  find  here  an  early  instance  whe.re  a  Parliament  not 
backed  by  a  powerful  armed  faction  made  a  record  which 
implies  a  deliberate  intention  to  resist  the  ordinary  de- 
mands of  kings  for  money.  The  early  Parliaments  of 
Henry  VIII.  treated  the  demands  of  the  King  with  liber- 
ality. Then  there  were  seven  years  without  a  Parlia- 
ment. In  1623,  when  a  new  Parliament  had  been  called, 
Wolsey,  the  Lord  Chancellor,  went  before  the  House  of 
Commons  and  demanded  on  behalf  of  the  King  an  enor- 
mous grant.  The  independent  members  openly  resisted 
the  grant.  A  little  later  Wolsey  again  appeared  before 
the  Commons  without  their  consent.  After  the  speech 
of  the  Chancellor  the  members  of  the  House  sat  in  silence, 
refusing  to  make  any  answer.  "  At  last  the  Speaker,  Sir 
Thomas  More,  falling  on  his  knees,  with  much  reverence, 
excused  the  silence  of  the  House,  abashed,  as  he  said,  at 
the  sight  of  so  noble  a  personage  who  was  able  to  amaze 
the  wisest  and  most  learned  men  in  the  realm  ;  but  with 
many  probable  arguments  he  endeavoured  to  show  the 
Cardinal  that  his  coming  thither  was  neither  expedient 
nor  agreeable  to  the  .ancient  liberties  of  the  House." ^ 
The  Commons  insisted  upon  the  right  to  deliberate  in 
1  More,  Life  of  Sir  Thomas  More. 


CHAP.  XIX      HENRY  VIII.    AND  THE   REFORMATION  225 

the  absence  of  the  King's  minister,  and,  after  fifteen  days, 
voted  a  much  smaller  sum  than  the  one  demanded.  A 
little  later  an  attempt  was  made  to  exact  subsidies  from 
the  people  by  means  of  a  royal  commission ;  this  aroused 
such  a  formidable  resistance  that  the  King  thought  it 
best  to  recede  from  his  demands.  He  then  resorted  to 
"  voluntary  contributions  "  from  the  rich,  which  he  prom- 
ised to  repay.  When  it  was  urged  that  these  benevo- 
lences were  contrary  to  the  law  of  Richard  III.,  Henry 
secured  a  decision  from  the  judges  declaring  the  law  of 
Richard  void  because  Richard  was  a  usurper.  When  Par- 
liament was  again  called,  instead  of  voting  money  to  pay 
the  King's  debts,  it  passed  a  statute  freeing  the  King  from 
the  legal  obligation  to  pay  his  debts,  and  this  was  done 
more  than  once  during  the  reign. 

It  requires  no  explanation  to  show  that  in  these  events 
there  are  evidences  of  the  growth  of  the  ideas  out  of 
which  the  modern  Constitution  has  come.  Here  were  the 
demands  of  the  most  powerful  king  in  the  English  line 
resisted  and  thwarted  by  the  House  of  Commons  and  the 
tax -payers.  In  this  action,  too,  the  House  of  Commons 
was  not  supported  by  an  armed  faction.  The  only  sup- 
port which  the  Commons  had  was  the  knowledge  that 
there  had  grown  up  in  the  land  large  bodies  of  citizens 
who  Avere  trained  in  the  habit  of  resisting  the  tax- 
gatherer.  Not  only  was  the  King  foiled  in  his  legislative 
programme,  but,  powerful  as  he  was,  his  administrative 
officers  were  resisted,  and  he  was  compelled  to  recede 
from  his  demands.  It  was  not  until  he  fell  back  upon 
the  well-tried  policy  of  Henry  VII.  of  exacting  money 
from  the  helpless  rich,  that  he  attained  eminent  success 
and  could  be  sure  of  the  approval  of  the  nation. 

In  this  connection  it  is  well  to  notice  the  niggardly 
policy  in  which  Elizabeth  persisted.  Henry  VIII.  spent 
freely  because  he  could  get  an  abundance  without  incur- 

Q 


226         GROWTH   OF  THE   ENGLISH   CONSTITUTION    chap,  xix 

ring  the  enmity  of  the  nation.  Elizabeth  had  no  such 
supply,  and  hence  she  pursued  an  economical  policy.  It 
seems  probable  that  the  three  Tudor  monarchs  acted  in 
this  one  respect  in  accordance  with  the  wishes  of  the 
nation ;  that  the  monarchs  represented  the  nation  more 
nearly  than  did  the  Parliament  or  the  Church. 

From  the  beginning  of  our  history  to  the  time  of  the 
Tudor  kings,  there  have  been  two  sources  of  effective 
leadership  apart  from  the  King.  These  have  been  the 
great  lords  and  the  clergy.  These  forces  have  been  bal- 
anced against  each  other,  and  one  or  the  other  has  gained 
an  advantage  according  as  it  succeeded  in  securing  the 
cooperation  of  the  masses  of  the  people  in  their  local  in- 
stitutions, which  all  the  time  furnished  the  physical  force. 
From  the  end  of  the  reign  of  Henry  VIII.,  there  ceased 
to  be  effective  leadership  either  from  the  ranks  of  the 
great  lords  or  from  the  clergy.  Or,  to  state  the  case 
more  accurately,  the  great  lords  and  the  clergy  had  ceased 
to  have  the  means,  independently  of  the  Monarch,  of  get- 
ting themselves  into  working  relations  with  the  physical 
forces  of  the  nation.  As  independent  institutions,  lords 
and  clergy  had  dropped  out.  True,  the  House  of  Lords 
remained  ;  but  it  was  effectually  tied  to  the  House  of 
Commons,  and  the  latter  House  stood  nearer  the  effective 
force  of  the  nation.  True,  also,  the  high  Church  officers 
remained  ;  but  these  were  made  to  feel  their  subjection  to 
the  King,  and  the  masses  of  the  people  had  lost  the  habit 
of  looking  to  them  for  leadership.  So  great  a  change 
would  naturally  tend  to  absolutism  unless  some  sort  of 
effective  checks  had  in  the  meantime  appeared  to  take 
the  place  of  those  destroyed. 

Such  needful  checks,  however,  were  not  wanting,  and 
their  sources  may  be  found  in  the  new  value  acquired  by 
religious  opinion  from  the  time  of  the  Reformation.  There 
had,  indeed,  been  no  time  in  English  history  when  such 


CHAP,  XIX       HENRY   VIII.   AND   THE   REFORMATION  227 

beliefs  did  not  play  an  important  part  among  the  national 
political  forces  ;  but  from  the  later  years  of  the  reign  of 
Henry  VIII.  their  relations  to  the  other  effective  influ- 
ences in  political  affairs,  and  the  channels  through  which 
their  power  was  brought  to  bear,  may  be  seen  to  have 
undergone  a  striking  change. 

Formerly  there  had  been  but  one  recognized  Church 
embodying  the  ecclesiastical  and  spiritual  authority.  The 
Church  was  coextensive  with  the  nation.  The  clergy  rep- 
resented a  large  measure  of  political  power,  and,  as  the 
accepted  teachers  of  religion  they  often  gained  effective 
political  support  from  the  people.  In  those  times  when 
portions  of  the  clergy  had  become  conspicuous  for  corrup- 
tion or  for  neglect  of  religious  duty,  the  resulting  criti- 
cism had  sometimes  served  to  alienate  large  numbers  of 
the  people  from  their  political  allegiance  to  their  clerical 
leaders  ;  hence  the  political  power  of  the  Church  was 
weakened  through  the  operation  of  religious  convic- 
tion, while  opposing  political  forces  were  consequently 
strengthened. 

But  now  spiritual  authority  was  no  longer  derived  from 
a  single  source.  Conflicting  religious  beliefs  became  the 
principal  substance  out  of  which  have  been  developed 
those  modern  political  parties  which  have  taken  the  place 
of  the  former  balancing,  against  each  other,  of  class  inter- 
ests and  contending  factions.  That  religious  opinion 
should  have  had  so  prominent  a  share  in  the  attainment 
of  those  forms  of  organized  public  opinion  which  we  call 
political  parties  is  the  point  to  be  here  especially  observed. 

We  have  seen  in  the  case  of  the  Lollards  that  a  revival 
of  religion  was  closely  associated  with  a  political  and 
social  movement ;  that  it  was  religious  teachings,  in  part, 
which  stirred  the  people  to  rebellion.  Religious  beliefs 
had  much  to  do  with  the  feeling  of  injustice  on  the  part 
of  the  people,  and  this  was  one  source  of  resistance  to  op- 


228         GROWTH   OF  THE   ENGLISH  CONSTITUTION    chap,  xix 

pression.  When  the  Lancastrian  kings  ruthlessly  crushed 
out  the  open  profession  of  Lollardy,  they  did  not  destroy 
the  religious  opinions  upon  which  Lollardy  was  founded. 
Those  opinions  of  life  and  duty  were  perpetuated,  and 
they  naturally  formed  an  important  element  in  the  char- 
acter of  that  unrepresented  part  of  the  nation  which  the 
Tudor  kings  encountered,  and  which  they  were  induced 
to  respect.  When,  therefore,  the  teachings  of  the  Refor- 
mation came  into  England  there  were  multitudes  whose 
minds  were  already  prepared  to  receive  them  ;  and  when 
the  division  in  the  Church  took  place  the  habit  of  political 
action  from  religious  motives  was  well  established. 

The  strange  coincidence  whereby  the  religious  teach- 
ings of  the  Reformation  fell  in  with  important  political 
changes  are  a  familiar  chapter  in  English  history.  It 
seems  probable  that  Henry  VIII.  was  controlled,  in  so 
far  as  he  was  controlled  at  all,  by  his  desire  for  popular- 
ity or  by  his  appreciation  of  the  necessity  of  satisfying 
those  with  whom  rested  the  effective  physical  power  of 
the  nation.  Therefore  in  the  early  part  of  his  reign, 
while  the  ideas  of  the  reformers  were  regarded  as  foreign, 
or  un-English,  Henry  took  his  share  in  the  arguments 
against  Luther  and  the  Reformers,  and  won  from  the 
Pope  the  title  of  Defender  of  the  Faith.  It  is  difficult 
to  find  a  time  in  English  history  when  it  was  unpopular 
for  an  English  ruler  to  quarrel  with  the  Pope  or  to  resist 
his  demands.  So,  in  the  matter  of  the  divorce,  Henry 
ran  no  risk  of  stirring  up  the  masses  in  England  to  oppose 
his  desires.  Later,  when  the  teachings  of  the  Reforma- 
tion had  permeated  to  a  large  extent  the  mind  of  the 
nation,  Henry  embraced  the  opportunity  to  destroy  the 
religious  institutions,  to  confiscate  the  property  of  the  mon- 
asteries and  abbeys,  and  to  reorganize  the  Church  in  ac- 
cordance with  the  reformed  teachings  of  the  day.  He 
took  special  pains  to  accomplish  this  work  in  such  a  man- 


CHAP.  XIX         HENRY  VIII.   AND  THE   REFORMATION  229 

ner  as  not  to  arouse  the  indignation  of  the  people ;  feel- 
ing his  way  along,  he  destroyed  at  first  only  the  weaker 
religious  houses  and  prepared  the  minds  of  the  people 
for  the  change  by  a  publication  of  the  abuses  alleged  to 
exist  in  them.  This,  along  with  the  general  tenour  of  the 
reformed  teachings,  made  it  possible  to  effect  the  revolu- 
tion in  a  quiet  and  peaceable  way. 

If  we  are  looking  for  the  development  of  the  modern 
Constitution,  we  cannot  neglect  the  uses  made  of  the 
House  of  Commons  during  the  latter  part  of  the  reign 
of  Henry  VIII.  Henry  would  not  break  with  the  people. 
To  maintain  this  policy  he  found  it  desirable  to  sacri- 
fice not  the  property  only  of  the  rich  and  powerful, 
but  the  lives  of  many  of  them  also.  It  is  said  of  him 
that  he  was  ever  ready  to  sacrifice  his  dearest  friend  to 
his  lightest  desire.  Now  it  is  clear  that  a  king  cannot 
for  forty  years  maintain  a  policy  which  involves  the  con- 
tinual beheading  of  queens,  bishops,  judges,  and  noble- 
men unless  he  has  command  of  unusually  effective  tools. 
The  chief  tool  of  Henry  VII.  was  the  arbitrary  court 
called  the  Star  Chamber.  When  his  son  became  king, 
that  tool  had  become  unacceptable  to  the  nation ;  there 
were  prejudices  against  it.  To  appease  the  multitude, 
Henry  VIII.  had  two  of  the  obnoxious  judges  of  this  court 
beheaded  on  a  trumped-up  charge  of  treason.  His  agents 
in  this  business  were  the  ordinary  courts  and  juries.  He 
continued,  nevertheless,  to  use  the  Star  Chamber,  but  he 
did  it  warily,  and  he  kept  himself,  besides,  well  supplied 
with  a  variety  of  courts  which  could  be  at  all  times 
relied  upon  to  do  his  bidding.  When  he  wanted  Wolsey 
destroyed,  Wolsey  knew  too  w^ell  that  it  would  be  folly 
to  resist.  Sir  Thomas  More  knew  that  his  life  hung 
upon  the  King's  will. 

Yet  during  all  this  time,  that  is,  during  the  reigns  of 
Henry  VII.  and  Henry  VIII.,  men's  minds  were  possessed 


230         GROWTH  OF  THE   ENGLISH  CONSTITUTION    chap,  xix 

witli  a  sort  of  infatuation  for  law.  It  was  law  that  was 
doing  everything.  A  story  is  told  of  a  judge  in  one  of 
the  new  parts  of  the  United  States  who  was  placed  under 
the  painful  duty  of  sentencing  one  of  his  neighbours  to  be 
hanged.  Addressing  him  in  an  entirely  neighbourly  way, 
he  said :  "  Now,  Mr.  Smith,  I  want  you  to  understand 
that  it  is  not  I  who  am  hanging  you,  but  it  is  the  law." 
The  idea  pervaded  the  Tudor  period  that  it  was  the  law 
that  governed,  and  the  law  was  conceived  of  as  something 
objective  and  apart  from  kings  or  institutions.  Only  the 
initiated  knew  that  it  was  really  the  King  who  was  hang- 
ing them,  and  it  is  not  unreasonable  to  suppose  that  they 
were  themselves  often  so  infatuated  with  the  idea  of  law 
that  they  failed  to  distinguish  between  the  law  and  the 
royal  will.  It  was  a  time  of  great  reaction  from  the  rule 
of  faction  and  brute  force.  The  New  Monarchs  used  tools 
which  seem  only  a  little  less  barbarous  and  brutal,  when 
we  compare  them  with  the  higher  ideals  of  modern  times, 
than  were  the  leaders  of  factions  and  armies  which  those 
tools  displaced.  Yet  to  the  generations  that  witnessed 
the  change,  the  difference  seemed  immense.  There  is  a 
wide  difference  between  the  prompt  beheading  of  a  few 
potential  faction  leaders  according  to  the  forms  of  law, 
and  the  meeting  those  same  leaders  on  the  field  of  battle. 
The  practical  results  of  substituting  one  method  for  the 
other  are  great,  and  it  is  a  fact  not  to  be  lost  sight  of 
that  in  England  this  great  practical  change  was  closely 
associated  with  an  exaggerated  notion  of  the  reign  of 
abstract  law. 

The  Tudor  kings  at  all  times  showed  a  wholesome  re- 
spect for  Parliament.  During  much  of  the  time  this  re- 
spect was  expressed  by  not  calling  Parliament  together,  by 
securing  the  necessary  funds  without  troubling  Parliament. 
Henry  VIII.  wrote  to  the  Pope  that  his  Parliaments  were 
accustomed  to  discuss  and  decide  matters  independently. 


CHAP.  XIX        HENRY  Vin.   AND  THE  REFORMATION  231 

It  is  quite  likely  tliat  the  King's  intention,  in  this  instance, 
was  to  make  his  Parliament  a  scapegoat  for  the  odium 
attached  to  his  refusal  to  comply  with  the  Pope's  wishes. 
Nevertheless,  there  was  a  grain  of  truth  in  what  he  said, 
as  is  shown  in  the  case  of  the  House  of  Commons  insist- 
ing on  the  privilege  of  considering  the  matter  of  supplies 
apart  from  the  dictation  of  the  Chancellor.  Another  ex- 
ample of  the  vindication  of  a  privilege  of  the  House  of 
Commons  is  seen  when  a  member  of  the  House  having 
been  arrested,  the  Commons  sent  its  sergeant  to  demand 
his  release.  The  sergeant  was  resisted  :  whereupon,  all 
who  had  had  any  share  in  the  arrest  of  the  member  were 
arraigned  before  the  House  and  committed  to  prison,  and 
the  King  approved  this  action,  of  the  Commons  in  the 
strongest  terms.  In  this  instance  it  should  be  observed 
that  in  defence  of  its  own  privileges  the  House  of  Com- 
mons acted  as  an  independent  high  court  with  power  to 
punish  offenders.  But  the  fact  which  stands  out  most 
prominently  in  the  history  of  Parliament  in  the  time  of 
Henry  VIII.,  is  that  it  was  for  the  most  part  the  King's 
most  pliable  and  effective  tool. 

The  courts  of  law  were  governed  by  the  rules  of  pro- 
cedure, and  in  an  age  when  high  notions  of  abstract  law 
prevailed  the  rules  of  the  courts  were  likely  to  be  in  the 
way  of  an  arbitrary  king.  Even  the  Court  of  the  Star 
Chamber  had  its  rules.  One  rule,  which  prevailed  in  courts 
of  every  sort,  required  that  in  case  of  the  punishment  of  a 
culprit,  some  offence  should  be  charged  against  him  in 
the  records.  Henry's  courts  had  been  exceedingly  com- 
placent in  this  respect,  but  when  it  came  to  the  supreme 
act  of  destroying  the  last  remnant  of  independent  leader- 
ship in  the  old  nobility,  and  at  the  same  time  striking 
down  the  Church,  and  taking  its  property,  it  was  at  times 
CKtremely  desirable  to  have  a  court  which  would  destroy 
the  King's  enemies  without  making  a  record  against  them 


232         GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xix 

of  any  specific  offence.  We  have  seen  that  in  the  time  of 
the  Wars  of  the  Roses  it  was  customary  for  the  victorious 
faction  to  make  use  of  Parliament  to  destroy  its  enemies 
and  take  their  property.  But  now  in  this  intensely  legal 
age  a  doubt  arose  as  to  the  legality  of  Parliament's  con- 
demning a  culprit  without  recording  any  charge  against 
him,  and  without  allowing  any  one  to  speak  on  his  behalf. 
To  remove  this  doubt,  the  judges  were  consulted,  and  the 
judges  ventured  to  suggest  that  it  would  not  be  a  good 
example  for  the  high  court  of  Parliament  to  act  in  the 
manner  described.  Nevertheless,  they  decided  that  no 
act  of  Parliament  could  be  called  in  question  in  a  court 
of  law.  With  this  point  thus  disposed  of,  Henry  found 
in  the  House  of  Commons  his  mightiest  weapon.  The 
House  of  Lords,  with  its  members  in  jeopardy  of  their 
lives,  furnished  no  effective  resistance.  By  a  careful 
selection  of  the  members  of  the  Commons  the  King's  will 
could  be  done,  and  whatever  was  done  was  legal ;  and, 
according  to  the  notions  of  the  day,  that  which  was  legal 
could  not  be  very  bad. 

It  will  be  seen  that  this  exaltation  of  the  Parliament 
and  of  the  House  of  Commons  in  particular  above  all 
other  courts,  is  of  no  small  consequence  in  the  task  of 
accounting  for  the  modern  Constitution.  The  Parliament 
was  not  only  made  the  instrument  for  the  summary  de- 
struction of  the  enemies  of  the  King,  but  by  means  of  it 
the  most  high-handed  and  sweeping  changes  were  made. 
Courts  were  set  up  and  statutes  were  passed  to  accommo- 
date the  King  in  all  his  personal  affairs  of  divorce  and 
marriage  and  the  destruction  of  objectionable  wives.  In 
a  limited  way  the  King's  orders  were  by  act  of  Parlia- 
ment given  force  of  law.  The  King  was  made  the  head 
of  the  English  Church,  and  by  a  series  of  statutes  the 
Church  was  reorganized,  former  religious  practices  were 
made  punishable  by  law,  and  new  faiths  and  forms  were 


CHAP.  XIX      HENRY  VIII.   AND  THE  REFORMATION 


made  obligatory.  It  is  difficult  to  see  how  so  many 
changes  could  be  made  in  so  short  a  time,  with  so  little 
disturbance,  except  for  the  remarkable  concurrence  of  the 
strong  hand,  a  triumphant  and  pliable  Parliament,  and  a 
rapidly  changing  nation. 


CHAPTER  XX 

RELIGIOUS   DISSENSION  AND   THE   GROWTH  OF  THE 
HOUSE   OF   COMMONS 

TTTHEN  Henry  VIII.  died,  in  1547,  England  had  been 
^  ^  for  more  than  sixty  years  continuously  governed 
by  the  strong  hand.  The  quality  of  the  statesmanship 
of  such  a  government  is  revealed  when  the  strong  hand  is 
removed.  For  more  than  a  decade  the  institutions  which 
Henry  VIII.  left  stood  the  strain  of  the  alternate  rule  of 
contending  religious  factions  without  producing  serious 
civil  war.  Though  it  is  probable  that  the  endurance  of 
such  a  strain  could  not  have  been  greatly  prolonged,  the 
fact  that  it  continued  so  long  speaks  volumes  for  those 
who  had  formed  the  institutions. 

We  never  quite  know  whether  Henry  VIII.  was  a 
Romanist  or  a  Protestant ;  or  whether  or  not  he  was  a 
religious  man  at  all.  The  Church  as  he  left  it  was  partly 
Protestant  and,  according  to  the  later  standards,  it  was 
partly  Roman  Catholic.  He  had  moved  along  with  the 
nation,  and,  in  the  main,  he  had  kept  the  nation  united. 
He  had  made  only  such  changes  as  could  be  effected  by 
terrifying  the  few  while  not  offending  the  masses.  Henry 
being  dead,  the  government  drifted  into  the  hands  of  those 
who  were  distinctively  Protestant.  A  sweeping  destruc- 
tion of  images  followed.  The  mass  was  abolished,  a  new 
prayer-book  was  adopted,  and  new  articles  of  faith  were 
made  obligatory.      There  was  developed  a  decided  ten- 

234 


I 


CHAP.  XX  RELIGIOUS  DISSENSION  235 

iency  to  persecute  those  who  refused  to  adopt  the  new 
views.  By  means  of  packed  Parliaments  the  government 
accomplished  its  ends.  There  was,  however,  some  show 
of  parliamentary  resistance,  and  there  were  some  slight 
rebellions  by  way  of  protest  against  the  changes  enforced 
by  the  extreme  Protestant  party.  But  there  had  not  been 
time  to  test  effectively  the  Protestant  policy  before  the 
government  passed  into  the  hands  of  the  Roman  Catho- 
lics by  the  crowning  of  Mary.  Again  Parliament  mani- 
fested a  spirit  of  resistance  and  again  it  was  found  possible 
so  to  control  the  membership  of  the  House  of  Commons 
as  to  make  it  possible  to  legalize  the  ancient  religion. 
Mary  found  courts  as  ready  to  destroy  the  enemies  of  her 
party  as  had  been  the  courts  of  her  father  to  do  his  bid- 
ding. But  this  policy  took  the  form  of  religious  persecu- 
tion and  profoundly  stirred  th^  sensibilities  of  the  nation. 
Henry  could  destroy  his  enemies  by  the  score  without 
causing  a  ripple  in  the  national  mind.  All  was  done 
legally,  and  it  was  expected  that  the  law  would  destroy 
the  law-breaker.  But  in  the  eyes  of  the  people  Mary's 
enemies  were  those  only  who  differed  from  her  in  religion, 
and  their  destruction  appealed  to  the  profoundest  popular 
feelings.  Mary,  however,  also  died  too  soon  for  the  test- 
ing of  her  policy. 

She  left  England  divided  into  two  camps,  —  a  Protes- 
tant party  and  a  Romish  party.  It  is  not  possible  to  state 
with  confidence  which  of  these  parties  was  the  larger  or 
which  of  them  had  the  greater  physical  force.  These 
parties  were  at  the  same  time  religious  and,  in  a  certain 
sense,  political.  It  was  the  business  of  the  government 
to  say  which  forms  of  religion  should  be  observed.  If 
the  government  should  lean  to  the  Romish  forms,  it 
would  offend  the  Protestant  party.  If  it  should  lean  to 
the  Protestant  forms,  it  would  offend  the  Romish  party. 
These  opposing  bodies  did  not,  however,  correspond  to 


236  GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xx 

fully  developed  political  parties  as  known  at  the  present 
day.  They  were  not  organs  of  public  opinion  maintained 
for  the  purpose  of  controlling  the  action  of  the  govern- 
ment. Still,  the  existence  of  the  contending  religious 
classes  was  fitted  to  modify  the  action  of  the  government, 
and  fortune  favoured  the  Protestants. 

There  may  be  some  doubt  about  the  real  religious  opin- 
ions of  Elizabeth,  but  it  is  not  possible  to  doubt  that  the 
result  of  her  reign  was  to  make  England  almost  entirely 
Protestant.  The  general  history  of  the  period  had  much 
to  do  with  this  result.  The  nations  of  Europe  were  en- 
gaged in  religious  wars.  The  next  heir  to  the  throne 
in  England  was  Mary,  Queen  of  Scotland,  who  was  a 
devoted  Romanist,  and  for  many  reasons  the  favourite  of 
the  Roman  party  in  England.  Mary  was  closely  allied 
to  France,  and  up  to  this  time  the  English  were  not  ac- 
customed to  look  with  favour  upon  either  Frenchmen 
or  Scotchmen.  The  circumstances  of  the  candidature  of 
Mary  for  the  throne  of  England  had  the  effect  of  win- 
ning for  Elizabeth  the  sympathies  of  the  English  people, 
whether  Catholic  or  Protestant.  At  such  a  time  men's 
religious  views  are  likely  to  foUoAV  their  political  sympa- 
thies, special  circumstances  now  intensified  this  tendency 
in  England.  There  was  the  murder  of  Darnley,  the 
repeated  attempts  upon  the  life  of  Elizabeth,  the  plots 
against  her  throne.  Then  there  was  the  Massacre  of 
St.  Bartholomew,  due  to  the  Catholic  party  in  France. 
Finally,  England  was  stirred  to  the  greatest  depths  by 
the  coming  of  the  Invincible  Armada.  Of  the  few  who 
remained  Roman  Catholic,  the  greater  number  were  Eng- 
lish or  anti-Papist  in  their  political  sympathies.  Elizabeth 
found  England  divided  into  two  nearly  equal  religious 
parties,  and  she  left  it  strongly  Protestant. 

The  power  of  the  Pope  in  England  had  at  no  time  been 
great.     Unless  there  were  peculiar  temporary  reasons  to 


CHAP.  XX  RELIGIOUS  DISSENSION  237 

the  contrary,  the  King,  the  lords,  the  English  clergy,  and 
the  great  body  of  the  people  were  always  opposed  to  being 
governed  from  Rome.  When  King  John  submitted  to 
the  Pope,  and  partly  because  he  submitted,  he  had  all 
England  against  him.  From  the  days  of  the  Conqueror 
there  were  laws  whose  object  was  to  limit  papal  inter- 
ference in  English  politics.  From  century  to  century 
there  was  a  tendency  for  these  laws  to  grow  more 
numerous  and  more  stringent.  When  Henry  VIII.  pro- 
posed entirely  to  displace  the  power  of  the  Pope,  he  did 
a  thing  in  itself  agreeable  to  the  general  political  senti- 
ment ;  and  he  was  careful  not  greatly  to  offend  the 
religious  sense  of  the  people.  But  after  the  violent 
Protestant  rule  of  Edward  VI.  and  the  still  more  violent 
Romish  rule  of  Mary,  it  became  exceedingly  difficult  for 
any  one  to  rule  without  greatly  offending  the  religious 
sense  of  a  large  class  of  the  people.  Elizabeth  came  as 
near  to  doing  this  as  it  was  possible  for  mortal  to  do. 
Yet,  as  stated  above,  the  relation  of  external  to  internal 
history  was  such  as  to  make  Elizabeth's  rule  distinctively 
Protestant,  and  at  the  same  time  to  make  the  English 
nation  almost  as  equally  so.  The  nation,  however,  did 
not  remain  moderate  in  its  Protestantism  as  did  its  ruler. 
The  Pope,  never  a  favourite,  became  now  the  personifica- 
tion of  all  that  is  abominable.  The  burning  of  heretics, 
•  assassinations,  massacres,  gunpowder  plots,  in  a  blind 
unreasoning  way  were  all  charged  to  the  Pope.  "No 
Popery "  became  a  party  cry  in  England  which  has  not 
wholly  lost  its  force  to  the  present  day.  But  all  Eng- 
land did  not  become  thus  fanatically  Protestant.  There 
were  influential  persons  who  remained  convinced  and  con- 
sistent Romanists.  There  was  a  much  larger  number  who, 
while  not  Romanists,  were  moderate  in  their  Protestant 
views,  and  both  the  Romanists  and  the  more  moderate 
Protestants   were   naturally   disposed    to   resist   changes 


238  GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xx 

either  in  religion  or  in  political  institutions.  Such  con- 
ditions were  favourable  to  the  growth  of  those  ideas  out 
of  which  political  parties  have  been  developed.  What 
may  be  called  the  old  Constitution,  under  which  class  was 
balanced  against  class,  while  the  masses  of  the  nation  had 
no  share  in  the  government,  cannot,  indeed,  be  yet  said 
to  have  given  place  to  the  new  Constitution,  with  a  gov- 
ernment swayed  by  opinion  through  its  two  great  organs 
of  popular  "expression  known  as  political  parties.  So 
great  a  change  was  not  reached  suddenly.  But  in  an 
effort  to  understand  this  change,  no  reign  compares  in 
importance  with  that  of  Elizabeth. 

Elizabeth  herself  is  an  enigma.  We  do  not  quite  know 
whether  she  was  a  short-sighted,  fickle-minded  woman, 
living  along  from  hand  to  mouth,  trying  first  one  experi- 
ment and  then  another,  or  whether  she  possessed  a  sort  of 
superhuman  genius  for  statesmanship  which  enabled  her  to 
foresee  the  outcome  of  the  most  occult  political  forces,  to 
form  a  secret  plan  and  to  carry  it  into  effect  by  deceiving 
and  outwitting  her  own  statesmen  and  philosophers,  and 
the  potentates  of  Europe.  Almost  all  statements  about  the 
character  and  motives  of  a  ruler,  and  especially  statements 
as  to  the  relation  of  the  personal  qualities  of  a  ruler  to 
contemporary  and  future  politics,  rest  upon  mere  opinion. 
Modesty  of  statement  in  such  a  case  does  not  necessarily 
argue  a  lack  of  understanding.  Looking  at  results,  Eliza- 
beth's reign  seems  to  have  been  fortunate  for  England. 
On  the  theory  that  the  Monarch  was  weak  and  fickle, 
there  was  a  fortunate  coincidence  between  these  qualities 
and  the  needs  of  England.  On  the  theory  of  transcendent 
ability,  Elizabeth  saw  into  the  mind  and  heart  of  her  people, 
and  determined  at  all  hazards  to  give  that  people  the  best 
possible  chance.  Whatever  may  be  the  theory  accepted, 
the  fact  remains  that  there  is  essential  harmony  between 
the  apparent  needs  of  the  nation  and  the  personal  quali- 
ties of  the  Monarch. 


CHAP.  XX  RELIGIOUS  DISSENSION  239 

Elizabeth  furnishes  a  convenient  personification  of  the 
spirit  of  modern  politics.  The  England  of  Elizabeth  was 
not  the  old  England  in  which  there  were  distinct  classes 
having  a  separate  access  to  the  dominant  physical  forces 
of  the  nation.  There  had  been  successive  generations 
living  under  a  continuous  reign  of  law.  There  were 
neither  barons  nor  bishops  who  could  be  relied  upon  to 
call  out  the  nation  and  to  redress  grievances  by  force  ; 
and  there  was  not  yet  a  Parliament  capable  of  effective 
use  as  an  organ  of  public  opinion.  Yet  England  was 
divided  into  two  religious  parties  ready  to  cut  each  other's 
throats.  These  parties  were  kept  in  balance  one  against 
the  other.  There  was  a  sort  of  party  government  with- 
out party  organs;  or  rather,  the  Queen  served  as  an 
organ  for  both  parties.  If  the  Queen  was  an  indeter- 
minate character,  the  modern  political  party  is  likewise 
in  many  respects  an  indeterminate  force.  It  is  said  of 
the  Queen  that  she  was  "  the  greatest  liar  in  Europe." 
There  is  still  a  common  belief  that  much  untruthfulness 
prevails  in  party  politics,  and  this  notwithstanding  the 
fact  that  the  two  parties  have  distinct  organs  of  expres- 
sion. What  an  amount  of  falsehood  and  deception  would 
ensue  if  the  modern  parties  with  their  contradictory 
views  were  compelled  to  find  expression  through  the  same 
person ! 

The  Parliaments  of  Elizabeth  did  not  reach  a  really 
dominant  place  in  the  government ;  yet  it  was  a  time  of 
great  parliamentary  progress.  Every  Parliament  that  was 
called  showed  a  spirit  of  resistance  to  some  demand  or  wish 
of  the  Queen.  The  earlier  ones  insisted  that  the  Queen 
should  marry  ;  and  when  she  ordered  them  to  desist  from 
pressing  that  subject,  they  still  insisted  upon  their  right, 
and  she  was  induced  to  yield  so  far  as  to  promise  compli- 
ance with  their  demands.  Throughout  her  reign  Eliza- 
beth was  extremely  sensitive  as  to  permitting  Parliament 


240  GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xx 

to  meddle  with  the  affairs  of  the  Church.  One  Strick- 
land, introduced  a  bill  to  alter  the  prayer-book,  and  for 
this  he  was  imprisoned  by  order  of  the  Privy  Council. 
But  this  act  stirred  up  such  a  storm  in  the  House,  over  the 
breach  of  privilege,  that  Strickland  was  released.  Another 
member,  Paul  Wentworth,  said  of  certain  rumours  and 
messages  which  tended  to  interfere  with  the  freedom  of 
debate,  that  he  wished  they  were  buried  with  the  father  of 
them  in  hell.  For  this  bold  speech  he  was  imprisoned  for 
a  month  before  being  restored  to  his  place  in  the  House. 

Such  contests  were  numerous,  and  the  spirit  of  the 
House  of  Commons  grew  bolder  and  more  determined. 
The  last  of  Elizabeth's  Parliaments  secured  from  the 
Queen  a  promise  that  the  granting  of  monopolies  should 
be  discontinued.  The  ministers  of  the  Crown  had  fallen 
into  the  habit  of  taking  part  in  the  debates  of  the  House 
of  Commons.  Notwithstanding  the  complaints  of  the 
Queen  against  the  much  speaking  of  the  House,  and  in 
the  face  of  positive  orders  that  the  speaking  should  be 
limited,  it  nevertheless  grew  more  bold  and  significant. 
There  were  frequent  complaints  in  the  Commons  about 
interference  with  the  election  of  members.  Many  of  the 
members  were  creatures  of  the  government,  yet  there  was 
at  all  times  a  goodly  number  of  independent  members. 
The  votes  on  many  important  issues  were  very  close,  and 
some  of  the  divisions  were  hotly  contested.  There  was  a 
quarrel  between  the  two  Houses  over  a  matter  of  pro- 
cedure, in  which  the  Lords  recorded  a  protest,  but  yielded 
nevertheless,  to  the  Commons.  In  another  instance  the 
Commons  asserted  their  right  of  precedence  in  all  meas- 
ures of  taxation.  The  spirit  of  the  Parliaments  which 
faced  the  first  Stuart  kings  was  clearly  nurtured  in  the 
Parliaments  of  Elizabeth. 

In  an  effort  to  understand  a  constitution  based  upon 
public  opinion,  it  is  worth  while  to  notice  the  literature  of 


CHAP.  XX  RELIGIOUS  DISSENSION  241 

the  nascent  period.  The  rule  of  the  Tudors  coincided 
with  the  appearance  of  the  New  Learning,  by  which  the 
politics  of  the  time  was  in  many  ways  affected.  The 
poets  of  Elizabeth  sang  as  they  pleased.  An  atmosphere 
of  intellectual  vigour  and  activity  is  favourable  to  free 
thought  and  free  speech  in  politics  and  in  religion.  The 
long  speeches  in  Parliament  were  due  in  part  to  the  con- 
sciousness on  the  part  of  the  orators  of  possessing  ideas 
worthy  of  utterance,  and  to  a  fondness  for  public  speaking. 
The  printing  press  was  deeply  affecting  the  political  and 
religious  thought  of  the  time.  It  is  difficult  to  see  how 
public  opinion  could  have  been  effectually  turned  to  ac- 
count without  the  art  of  printing. 

The  industrial  conditions  had  likewise  much  to  do  with 
preparing  the  way  for  a  new  Constitution.  Nearly  all 
that  was  feudal  had  long  since  passed  away.  Feudal 
justice,  never  general  in  England,  had  been  long  since 
displaced  by  the  common  law  courts.  Feudal  armies 
disappeared  with  the  Wars  of  the  Roses.  Feudal  land 
tenure  had  been  for  the  most  part  succeeded  by  contract 
between  landlord  and  tenajit.  The  substitution  of  law 
for  violence  tended  to  the  enrichment  of  large  classes  of 
the  people.  By  the  end  of  Elizabeth's  reign,  England, 
judged  by  all  former  standards,  was  a  rich  country,  and 
wealth  was  in  the  hands  of  men  who  knew  at  what  cost  it 
had  been  gained,  and  who  knew  also  how  to  guard  it. 

If  the  views  here  presented  are  correct,  the  period  of 
the  Tudor  monarchs  was  one  of  rapid  constitutional  con- 
struction; one  in  which  the  substance  of  the  old  Constitu- 
tion was  essentially  changing,  while  the  foundations  of  a 
new  Constitution  were  being  laid.  The  form  of  the  old 
remained;  the  substance  was  altered.  According  to  the 
old  Constitution  the  recognized,  or  we  may  say,  the  consti- 
tutional, way  of  limiting  the  power  of  the  Crown  was  to 
make  war  upon  the  King.     Under  the  new  Constitution 


242  GEOWTH   OF  THE   ENGLISH   CONSTITUTION    chap,  xx 

public  opinion  limited  or  controlled  the  Monarch,  and 
there  were  in  time  developed  organs  of  public  opinion 
capable  of  ruling  the  nation  with  little  reference  to  the 
will  of  the  Monarch.  Under  the  new  Constitution  making 
war  upon  the  King  became  irregular  and  revolutionary; 
an  act  not  justifiable  unless  the  King  persisted  in  disobey- 
ing the  law  or  the  Constitution. 

Under  the  old  Constitution  sovereign,  barons,  or  bishops 
prevailed  according  as  either  gained  the  cooperation  of 
the  people  acting  through  their  local  institutions.  During 
the  entire  ante-Tudor  period  Parliament  is  to  be  regarded 
as  simply  a  part  of  the  King's  judicial,  administrative,  and 
legislative  agencies.  It  is  not  to  be  thought  of  as  an 
institution  possessing  independent  powers.  The  House  of 
Commons  was  packed  and  controlled  either  by  the  King 
or  by  a  faction  hostile  to  him  among  nobility  and  clergy. 
The  creation  of  the  House  of  Commons  led  to  a  sort  of 
breaking  away  of  the  ruling  classes  from  the  people,  to  a 
sort  of  conspiracy  of  the  ruling  classes  against  the  masses. 
If  the  ruling  classes  had  been  united  among  themselves, 
there  is  reason  to  believe  thqy  would  have  broken  or 
greatly  checked  the  spirit  of  resistance  among  the  masses. 
But  they  were  not  at  any  time  united.  The  aggrieved 
masses  maintained  a  measure  of  coherence,  being  at  all 
times  kept  in  a  fighting  attitude  on  account  of  the  violence 
and  aggressions  of  the  ruling  classes.  On  account  of  the 
weakness  and  apparent  inoffensiveness  of  the  national 
assembly,  it  was  granted  a  perpetual  existence.  In  the 
hands  of  the  factions  the  Parliament  was  made  the  instru- 
ment of  various  high-handed  acts  of  government.  These 
acts  were  such  that  when  Parliament  itself  became  an 
agent  of  public  opinion,  it  also  became  the  one  symbol  of 
the  unity  of  the  nation,  older  than  kings,  more  enduring 
than  dynasties,  the  destroyer  of  evil  monarchs,  and  the 
final  authoritative  expression  of  the  will  of  the  nation. 


CHAP.  XX  RELIGIOUS   DISSENSION  243 

It  is  not  so  easy  to  name  the  distinct  elements  of  the 
Constitution,  or  of  the  dominant  forces  of  the  government 
as  they  appeared  at  the  close  of  the  Tudor  period.  The 
Crown,  of  course,  remained  with  its  various  judicial, 
administrative,  and  legislative  agencies.  Effective  and 
independent  leadership  of  the  nobility  had  disappeared. 
But  a  statement  of  this  sort  needs  to  be  carefully  scru- 
tinized. The  nobility  still,  as  ever,  furnished  political 
leaders.  Even  in  these  most  democratic  times  we  have 
high  authority  for  saying  there  yet  remains  "  a  sneaking 
kindness  for  a  lord,"  and  there  have  always  been  tenden- 
cies to  revert  to  the  leadership  of  an  hereditary  nobility. 
What  precisely,  then,  is  the  difference  between  the  leader- 
ship of  the  nobility  before  the  time  of  the  Tudor  mon- 
archs  and  the  same  leadership  after  that  time  ?  This 
question  may  be  answered  by  saying,  the  earlier  leader- 
ship was  chiefly  feudal  and  military  ;  the  later  has  been 
chiefly  political.  The  old  nobility  furnished  the  natural 
rallying-point  for  military  resistance.  Henry  VIII.  put 
a  "  crick  in  the  neck  "  of  every  nobleman  who  has  since 
been  tempted  to  engage  in  the  old-fashioned  style  of 
leadership.  Elizabeth  was  averse  to  bloodshed,  but  she 
continued  the  practice  of  beheading  the  few  noblemen  who 
showed  a  tendency  to  revert  to  the  ancient  form  of  leader- 
ship. Since  the  Tudors,  noblemen  have  been  effective 
leaders  only  in  so  far  as  they  have  excelled  in  political 
management. 

When  feudal  armies  and  liveries  disappeared,  the  House 
of  Lords  remained  as  the  chief  organ  of  the  nobility.  We 
have  seen  that  the  House  of  Commons  was  made  the  most 
effective  weapon  for  the  summary  destruction  of  lords  and 
bishops  in  the  later  years  of  Henry  VIII.  The  natural 
tendency  of  such  a  proceeding  is  to  weaken  the  House  of 
Lords  as  an  institution,  and  to  strengthen  the  Commons. 
Even  in  the  earlier  time  Avhen  Parliament  was  a  mere  tool. 


244  GKOWTH  OF  THE   ENGLISH  CONSTITUTION    chap,  xx 

it  was  often  convenient  for  a  triumphant  faction  of  Lords 
to  use  the  House  of  Commons  as  the  agent  of  unusual  or 
high-handed  acts.  All  such  acts  tended  to  the  ultimate 
increase  of  the  power  of  the  Commons  at  the  expense  of 
the  Lords.  In  the  time  of  Elizabeth,  the  Lords  received 
less  attention,  relatively,  than  the  Commons  ;  it  was  the 
Commons  alone  who  were  constantly  in  hot  water  with 
the  Queen.  In  reply  to  an  address  urging  her  to  marry, 
the  Queen  declared  that  "  she  was  not  surprised  at  the 
Commons  ;  they  had  had  little  experience,  and  had  acted 
like  boys  :  but  that  the  Lords  should  have  gone  along 
with  them,  she  confessed,  filled  her  with  wonder."  When 
a  contest  arose  between  the  two  Houses,  the  Lords  pro- 
tested and  then  yielded.  In  the  time  of  Elizabeth,  also, 
the  precedent  was  established  of  allowing  the  heir  to  a 
peerage  a  seat  in  the  House  of  Commons.  Noblemen  had 
from  the  earliest  time  taken  part  in  selecting  members 
of  the  Commons,  and  the  younger  sons  of  noble  families 
were  accustomed  to  sit  in  the  House.  Now  it  was  held 
that  the  heir  to  a  peerage  should  have  a  place  there  like- 
wise. These  are  all  factors  of  importance  in  accounting 
for  the  relative  weakening  of  the  House  of  Lords  and 
the  final  enthronement  of  the  Commons.  And  the  result 
has  been  that  peers,  in  order  to  lead  in  politics,  have  often 
found  it  necessary  to  act  through  the  Commons. 

It  should  be  observed  also  that  when  the  clergy  ceased 
to  be  leaders  in  the  old  sense  they  did  not  cease  to  be 
important  factors.  At  a  time  when  learning  was  still 
limited,  an  educated  class,  which  was  also  a  class  having 
control  of  the  agencies  of  education,  could  not  be  an 
insignificant  factor  in  politics  under  a  constitution  domi- 
nated by  public  opinion.  But  the  old,  partially  indepen- 
dent, political  Church  had  passed  away.  It  was  first  rent 
into  two  opposing  religious  parties,  and  a  century  later 
the  Established  Church  found  itself  confronted  by  a  con- 


CHAP.  XX  RELIGIOUS  DISSENSION  245 

siderable  number  of  Dissenting  organizations.  Religious 
opinion  has  since  the  Tudors  been  a  much  more  important 
political  factor  than  the  small  modicum  of  political  power 
remaining  in  the  Established  Church.  That  is,  the  teach- 
ing function  of  the  Church  has  counted  for  more  in  poli- 
tics than  has  its  governing  function. 

By  the  time  of  the  death  of  Elizabeth  the  Constitution 
may  be  said  to  have  become,  so  to  speak,  greatly  simplified. 
The  really  dominant  sources  of  power  and  influence  had 
become  reduced  to  two.  These  were  the  Crown  with  the 
judicial  and  administrative  agencies  of  the  government, 
and  the  two  Houses  of  Parliament,  w^hich,  through  one 
branch,  the  House  of  Commons,  had  come  into  vital  rela- 
tions with  a  class  capable  of  asserting  coordinate  powers 
with  the  Monarch.  The  Tudor  rulers  had  championed 
the  unrepresented  English  people  as  against  privileged 
classes,  and  in  so  doing  they  had  nursed  into  life  a  repre- 
sentative assembly  capable  of  competing  on  equal  terms 
for  the  support  of  the  nation.  From  the  political  con- 
tention thus  joined  has  been  developed  the  modern  Con- 
stitution. 

In  the  contests  between  Crown  and  Parliament  a  part 
of  the  nobility  sided  with  the  one,  and  a  part  with  the 
other  power.  A  part  of  the  Church  supported  the  Mon- 
arch, and  a  part  supported  Parliament.  So  likewise  among 
the  common  people,  one  portion  favoured  the  King,  and 
another  the  House  of  Commons.  Society  was  divided 
perpendicularly  rather  than  horizontally.  When  in  later 
centuries  political  parties  were  formed  to  continue  the 
political  contention,  each  party  set  up  an  equal  claim  to 
represent  the  entire  nation. 

Along  with  this  preeminence  of  sovereign  and  Parlia- 
ment among  the  powers  of  State,  certain  facts  concerning 
the  increased  value  of  the  Council  as  a  factor  in  the  gov- 
ernment should  not  be  overlooked.     It  will  be  remem- 


246  GROWTH   OF   THE  ENGLISH   CONSTITUTION    chap,  xx 

bered  that  as  soon  as  the  Houses  of  Parliament  had 
become  clearly  defined,  in  the  time  of  Edward  III.,  diffi- 
culties arose  between  them  and  the  Council.  Parliament 
was  able  to  secure  enactments  condemning  the  practice  of 
the  Council  in  the  matter  of  altering  acts  of  Parliament ; 
nevertheless  the  fact  remained  that,  since  the  King  and 
the  Council  were  the  administrators  of  the  laws,  and  were 
also  the  highest  court  of  appeal,  they  really  had  much  to 
do  with  the  making  of  the  laws.  Orders  in  Council  had 
the  force  of  legal  enactments,  and  there  was  always  a 
tendency  for  that  method  of  law-making  to  encroach  upon 
the  rights  of  the  two  Houses.  Under  Tudor  rule  the 
Council  experienced  a  remarkable  development.  Out  of 
it  the  Star  Chamber,  the  Council  of  the  North,  and  various 
other  arbitrary  courts  were  formed,  and  it  assumed  to 
interfere  in  many  ways  with  the  ordinary  courts.  Jurors 
were  even  punished  for  daring  to  render  decisions  con- 
trary to  the  wishes  of  the  Council.  One  of  the  late 
Parliaments  of  Henry  VIII.  gave  to  King  and  Council 
unlimited  powers  of  general  legislation.  This  peculiar 
expansion  of  the  powers  of  the  Privy  Council  is  important 
because  it  helps  to  explain  many  incidents  in  the  long 
contest  between  King  and  Parliament,  and  also  because  it 
is  out  of  the  Council  that  the  Cabinet,  the  unique  feature 
of  the  modern  Constitution,  has  been  developed. 


I 


CHAPTER  XXI 

THE  CROWN  AND  THE  HOUSE  OF  COMMONS 

TTTHAT  would  have  happened  to  the  English  Constitu- 
^  ^  tion  if  the  Tudors  and  the  Stuarts  had  changed 
places  ?  It  is  useless  to  try  to  answer  such  a  question  ; 
yet  it  is  not  possible  to  understand  any  theory  of  the 
modern  Constitution  without  a  distinct  realization  that 
the  England  of  the  Stuarts  was  different  from  the  Eng- 
land of  the  Tudors.  There  is  also  warrant  for  believ- 
ing that  there  is  a  marked  difference  between  the  personal 
qualities  of  the  Tudors  and  those  of  the  Stuarts.  We 
credit  the  Tudors  with  an  unusual  insight  into  the  politics 
of  their  day ;  while  the  Stuarts,  with  the  exception  of 
Charles  II.,  are  credited  with  a  phenomenal  obtuseness  as 
to  the  perception  of  current  political  forces.  How  much 
of  this  reputed  difference  is  due  to  a  difference  of  circum- 
stances, it  is  not  easy  to  discern.  The  first  two  Tudors 
carried  forward  the  work  of  destroying  the  effective 
leadership  of  the  great  lords,  temporal  and  spiritual.  To 
do  this  they  looked  for  support  to  the  country  gentlemen, 
to  merchants  and  lawyers,  and  they  took  special  pains  not 
to  offend  the  masses  of  the  people.  These  early  Tudors 
cast  in  their  lot  with  that  part  of  the  nation  which  a  hun- 
dred years  later  constituted  the  parliamentary  party. 
They  represented  the  people  as  against  the  privileged  and 
powerful  classes.  In  carrying  out  this  policy,  Henry  VIII. 
weakened  the  House  of  Lords,  and  strengthened  the  House 

247 


248         GROWTH   OF   THE   ENGLISH   CONSTITUTION    chap,  xxi 

of  Commons,  so  that  ever  afterwards  the  House  of  Com- 
mons remained  the  most  effective  organ  of  the  nation. 
Under  Elizabeth  this  House  of  Commons  had  long  years 
of  practice  in  more  or  less  effective  resistance  to  the 
Monarch.  The  leading  issues  between  the  Crown  and 
the  House  of  Commons  were  joined  in  the  time  of  Eliza- 
beth, and  these  grew  ever  more  marked  and  clear  through- 
out the  whole  of  her  reign.  Elizabeth's  chief  concern  was 
to  keep  Romanists  and  Protestants  from  open  conflict. 
She  refused  to  make  her  conflict  with  the  Commons  her 
chief  concern.  But  before  she  died  the  stress  of  the 
contest  against  the  Romanists  had  passed  away ;  new 
religious  and  political  issues  had  appeared.  Had  her  life 
been  prolonged,  she  would  have  been  compelled  to  make 
these  new  issues  her  chief  concern.  Had  there  been  a 
new  Henry  VH.  and  a  new  Henry  VIH.  to  follow  Eliza- 
beth, they  would  have  seen  the  chief  enemy  to  the  King's 
power,  not  in  an  old  feudal  nobility,  not  in  an  old  wealthy 
Church,  but  in  a  skilled  and  practised  House  of  Commons, 
backed  by  the  greater  part  of  the  middle  class  people ; 
that  is,  the  country  gentlemen,  lawyers,  and  wealthy 
townsmen. 

We  know  what  the  early  Stuarts  did  with  those  new 
issues ;  we  do  not  know  what  the  early  Tudors  would 
have  done  in  a  like  case. 

It  is  not  unlikely  that  the  England  of  the  Stuarts  dif- 
fered more  widely  from  the  England  of  the  early  Tudors 
than  did  the  personal  qualities  of  the  monarchs.  It  was 
comparatively  easy  for  the  early  Tudors  to  carry  out  a 
dark  and  secret  policy  extending  over  many  years.  Some 
of  their  most  disreputable  acts  have  been  discovered  only 
in  rather  recent  times.  Henry  VIII.  could  easily  deceive 
the  nation,  and  he  knew  that  he  could  do  so.  The  Stuart 
kings  could  not  deceive  the  nation,  and  it  was  the  mis- 
fortune especially  of  Charles  I.  to  act  as  if  it  were  an  easy 


CHAP.  XXI    THE  CROWN  AND  THE  HOUSE  OF  COMMONS        249 

task  to  do  so.  In  the  time  of  the  early  Tudors  the  New 
Learning  affected  only  the  select  few.  In  the  time  of  the 
early  Stuarts  learning  had  profoundly  affected  the  nation. 
"England,"  says  Green,  "  had  become  the  land  of  a  Book." 
Multitudes  read  the  Bible,  and  its  teaching  filled  their 
thoughts  and  their  speech.  A  public  conscience  grew  up 
which  was  superior  to  mere  partisan  feeling.  Religion, 
learning,  and  politics  were  related  far  more  closely  than 
they  had  been  in  the  time  of  the  Tudors.  The  high 
notions  of  law  in  the  time  of  the  Tudors  played  into  the 
hands  of  the  monarchs.  In  the  time  of  the  Stuarts,  these 
same  high  notions  of  law  rendered  equally  effective  service 
for  the  Parliament. 

There  is  a  fable  concerning  two  oxen  which  is  intended 
to  point  the  moral  that  in  the  light  of  ideal  justice  it 
makes  no  difference  whose  ox  it  is  that  is  gored.  But  in 
politics  it  really  does  make  a  difference.  The  early  Tudors 
and  the  early  Stuarts  alike  made  use  of  arbitrary  courts 
to  restrain  and  to  destroy  their  political  enemies.  In  the 
one  case  the  act  is  commended  as  just  and  right,  while  in 
the  other  it  is  universally  regarded  as  infamous.  Who 
were  the  chief  political  enemies  of  the  early  Tudors  ?  In 
our  modern  democratic  parlance  they  were  feudal  lords 
who,  by  means  of  armed  retainers,  Avere  accustomed  to 
prey  upon  the  nation.  They  terrorized  courts,  assassi- 
nated witnesses  and  jurors,  and  by  violence  obstructed  the 
ordinary  course  of  justice.  Kings  could  meet  violence 
with  violence,  but  Henry  VII.  preferred  the  more  just 
and  humane  method  of  restraining  the  violent  lords  by 
means  of  arbitrary  courts.  The  use  of  the  Star  Chamber 
in  its  original  form  for  such  a  purpose  is  now  commended. 
If  a  ruler  be  driven  to  a  choice  between  defeating  one 
armed  faction  by  another  or  restraining  it  by  means  of 
special  courts  of  law,  he  is  in  duty  bound  to  choose  the 
courts.     Who  were  the  chief  political  enemies  of  the  early 


250         GROWTH   OF   THE   ENGLISH   CONSTITUTION    chap,  xxi 

Stuarts  ?  It  is  now  the  common  belief  that  previous  to 
1640  the  political  enemies  of  the  Stuarts  were  jurists, 
lawyers,  country  gentlemen,  and  merchants,  who  were 
willing  to  sacrifice  ease,  personal  freedom,  property,  and 
life  itself  for  the  sake  of  the  Protestant  religion  and  the 
common  liberties  of  the  people.  To  have  used  the  Star 
Chamber  and  other  arbitrary  courts  to  restrain  and  de- 
stroy such  political  leaders  is  accounted  infamous. 

The  early  Stuart  kings,  however,  did  not  themselves 
take  the  modern  literary  view  of  their  own  position  in 
the  government.  James  I.  and  Charles  I.  both  believed 
themselves  to  be  as  good  and  as  virtuous  as  the  Tudor 
rulers.  They  believed  that  the  Protestant  religion  and 
the  liberties  of  the  people  were  as  safe  in  their  hands  as 
they  had  been  in  the  hands  of  the  Tudors.  In  this  opin- 
ion they  were  supported  by  a  large  class  of  the  educated 
and  the  influential  people  of  their  day.  On  the  royal  side 
also  was  the  weight  of  Roman  Catholic  influence.  The 
early  Stuarts  were  not  Romanists,  but  the  natural  sym- 
pathies of  sincere  Romanists  are  in  favour  of  permanence, 
order,  and  authority,  and  these  seemed  to  be  on  the  side 
of  the  King.  In  England  the  chief  opponents  of  the  King 
were  so  intensely  anti-Roman  Catholic  that  it  was  practi- 
cally impossible  for  members  of  that  sect  to  act  with 
them.  It  was  a  time  of  great  religious  wars  upon  the 
Continent,  and  strong  papal  parties  existed  in  Scotland, 
and  especially  in  Ireland.  Wherever  a  point  of  contact 
was  possible  between  papal  power,  or  a  papal  party  and 
English  politics,  the  Papists  usually  favoured  the  King  as 
against  the  Parliament. 

Again,  there  was  on  the  side  of  the  King  the  moderate 
party,  or  the  less  radical  reformers,  in  the  Established 
Church.  It  should  be  borne  in  mind  that,  until  the 
sword  was  drawn  in  the  parliamentary  strife,  the  great 
body  of  the  people  in  England  were  members  of  the  le- 


CHAP.  XXI    THE  CROWN  AND  THE  HOUSE  OF  COMMONS        251 

gaily  established  Church.  The  members  of  the  Puritan 
party  were  not  generally  Separatists  until  after  the  Re- 
bellion. They  still  hoped  to  capture  the  Church.  The 
bishops  and  a  large  proportion  of  the  clergy  gave  cordial 
support  to  the  King,  while  the  Puritan  clergy  of  the  same 
Church  gave  as  cordial  support  to  the  Parliament.  The 
few  Separatists,  or  the  members  of  the  sects,  were  also  in 
sympathy  with  Parliament,  but  had  little  influence.  At 
the  same  time  a  Presbyterian  church  organization  was 
regarded  by  the  Stuart  kings  as  an  enemy  of  monarchy. 
The  Stuart  kings  enjoyed  the  cordial  support  of  the 
remnant  of  the  old  nobility.  Although  it  was  true  effec- 
tive leadership  on  the  part  of  the  great  nobility  had  been 
destroyed,  it  does  not  at  all  follow  that  the  nobility  were 
not  still  influential  in  politics.  To  curb  the  Welsh  it 
was  convenient  to  allow  great  lords  with  considerable 
independent  power  to  hold  estates  on  the  borders  of 
Wales.  Down  to  the  time  of  the  Stuarts,  in  order  to 
protect  England  against  Scotland,  the  great  estates  of  the 
north  were  maintained.  At  times  these  powerful  terri- 
torial magnates  exercised  a  restraining  influence  even 
upon  the  kings  themselves.  Nevertheless,  under  the 
early  Stuarts  some  of  the  most  effective  weapons  of  the 
Crown  were  found  in  the  border  counties.  The  Court  of 
the  Council  of  the  North,  instituted  by  Henry  VIII.,  was 
in  the  hands  of  Charles  I.  a  tool  of  arbitrary  government, 
as  were  similar  courts  on  the  borders  of  Wales.  This 
was  true  in  spite  of  the  fact  that  the  Council  of  the  North 
was  often  used  for  the  defence  of  the  masses  against  the 
tyranny  of  the  squires.  Wherever  the  influence  of  the 
higher  nobility  was  strong  the  king's  cause  had  cordial 
support ;  King,  bishops,  and  noblemen  were  at  one.  But, 
what  was  more  than  all  else,  the  first  Stuarts  had  undis- 
puted possession  of  the  administrative  agencies  of  the 
government,  and  the  high  courts  of  every  name  and  kind 


252         GROWTH   OF  THE   ENGLISH   CONSTITUTION    chap,  xxi 

were  almost  absolutely  under  their  control.  Under  the 
sway  of  these  administrative  agencies  the  people  had 
enjoyed  unexampled  peace  and  prosperity  for  more  than 
a  hundred  years.  It  is  not  at  all  strange  that  in  such  cir- 
cumstances these  kings  should  have  lofty  notions  of  their 
own  dignity  and  power. 

The  House  of  Commons,  composed  of  country  gentlemen 
and  lawyers,  and  merchants  from  towns  and  cities,  repre- 
sented the  well-to-do  classes  of  town  and  country.  They 
are  the  same  classes  upon  which  the  Yorkists  and  the 
early  Tudors  had  especially  relied  for  support.  Success- 
ful kings  had  ever  allied  themselves  with  the  lower  classes 
among  the  people,  and  had  won  their  support  by  protect- 
ing them  from  local  tyranny.  The  early  Stuarts  had 
certainly  a  favourable  opportunity  to  strengthen  their 
position  in  this  time-honoured  way.  The  long  contest 
over  enclosures  ^  had  left  bitter  recollections  in  the  minds 
of  the  poor.  The  many  industrial  changes  which  accom- 
panied the  Reformation  had  served  to  create  a  large  dis- 
contented class.  The  popular  risings  which  occurred  in 
the  later  years  of  the  reign  of  Henry  VIII.,  and  during 
that  of  Edward  VI.,  had  been  characterized  by  bitterness 
toward  the  rich.  The  army  of  the  government  was  desig- 
nated as  "  the  gentlemen's  army,"  while  that  of  the  insur- 
gents was  described  as  "the  Rising  of  the  Commons."  It 
was  regarded  as  a  war  of  the  commons  against  gentlemen. 
There  is  evidence  that  there  was  still  much  social  discon- 
tent which  the  Stuart  kings  might  have  turned  to  their 
own  advantage  against  a  Parliament  of  gentlemen.  Some 
support  they  did  receive  from  the  poor,  and  sometimes 
they  used  their  arbitrary  courts  for  the  defence  of  the 
lowly.  It  would  appear  that  Wentworth,  especially  dur- 
ing the  time  of  Charles  I.,  perceived  the  importance  of 
furnishing  royal  protection  to  the  inferior  classes,  yet  no 
1  See  Ashley,  English  Economic  History^  Vol.  II.,  p.  267  et  seq. 


CHAP.  XXI    THE  CROWN  AND  THE  HOUSE  OF  COMMONS        253 

Stuart  king  was  popular,  and  Parliament  was  in  the  end 
more  successful  than  were  the  monarchs  in  winning  the 
adherence  of  the  unrepresented  masses. 

With  the  coming  of  the  Stuarts  there  were  injected 
into  English  politics  distinct  and  conflicting  theories  of 
government.  This  is  the  one  great  contribution  of  the 
Stuarts  to  the  modern  Constitution.  Without  this  theo- 
rizing, what  we  now  know  as  the  English  Constitution 
could  never  have  been.  If  the  Tudors  ever  theorized 
about  abstract  rights  of  the  Crown  and  Parliament,  they 
kept  their  theories  to  themselves.  They  occupied  their 
energies  in  governing,  and  in  settling  the  various  difficul- 
ties as  they  arose.  It  is  conceivable  that  a  free  and  har- 
monious Constitution  might  have  been  developed  in  this 
way,  but  it  would  have  been  a  totally  different  Constitu- 
tion from  that  which  now  prevails.  Philosophers  and 
jurists  would  undoubtedly  have  theorized  in  any  case, 
but  the  unique  feature  of  English  politics  from  this  time 
on  is  found  in  the  fact  that  the  entire  body  politic  has 
been  accustomed  to  contend  over  conflicting  theories  of 
government.  The  peasant  as  well  as  the  philosopher  is 
called  upon  to  profess  a  belief  in  an  almost  incomprehen- 
sible theory  of  the  government. 

We  have  already  seen  that  a  nucleus  of  the  parliamen- 
tary party  with  a  well-defined  theory  of  the  powers  and 
privileges  of  the  House  of  Commons  was  already  formed 
when  James  came  to  the  throne.  Elizabeth  put  forward 
no  conflicting  theory,  but  she  took  care  if  possible  to  have 
her  own  way.  She  scolded  and  she  reproved  her  refrac- 
tory Commons,  but  she  set  forth  no  abstruse  theories. 
James,  on  the  other  hand,  answered  the  theory  of  the 
Commons  by  a  precise  theory  of  the  Crown.  According 
to  the  theory  of  the  Commons  the  Parliament  —  consisting 
of  King,  Lords,  and  Commons  —  is  the  sole  agency  for 
making   laws,  and   the  House  of   Commons   is   the    sole 


254  GROWTH   OF   THE   ENGLISH   CONSTITUTION    chap,  xxi 

agency  for  originating  a  vote  of  supplies.  The  King 
must  act  through  ministers  and  officers,  all  of  whom  are 
liable  to  be  punished  for  violating  the  laws.  The  govern- 
ment is  a  government  of  law,  and  Parliament  is  the  only 
agency  capable  of  changing  the  law.  James  came  to  the 
throne  of  England  with  a  well-defined  theory  of  the  powers 
and  duties  of  the  monarch.  'James  was  not  a  fool.  Had 
he  remained  in  Scotland,  he  must  have  been  accounted  a 
wise  ruler.  He  had  a  nervous  dread  of  swords,  but  he 
was  far  from  being  a  coward.  He  was  a  worthy  repre- 
sentative of  a  race  of  monarchs  whose  high  mission  it 
was  to  break  the  power  of  feudal  faction  in  Scotland  and 
give  a  chance  to  order  and  civilization.  His  boyhood 
and  early  manhood  were  spent  in  times  of  ecclesiastical 
contests  and  the  fiercest  conflicts  between  rival  political 
factions.  As  a  young  ruler  he  had  coped  with  all  the 
enemies  of  the  Crown  and  had  apparently  overcome  them. 
He  had  subdued  the  factious  lords.  The  Presbyterian 
Church  included  the  great  body  of  the  Scottish  nation  ;  it 
possessed  a  form  of  organization  well  fitted  for  purposes 
of  civil  government,  and  had  for  a  time  exercised  the 
controlling  power  in  the  government  ;  yet  the  young 
King  successfully  withstood  the  Kirk.  It  was  only  when 
he  was  subjected  to  the  restraining  hand  of  Elizabeth  that 
he  was  compelled  to  submit  to  its  sway.  As  soon  as  the 
foreign  restraint  was  removed,  James  set  up  an  episcopacy 
and  brought  the  Presbyterian  Assembly  under  the  control 
of  the  Crown.i  Flushed  with  victory  over  the  last  and 
most  formidable  of  his  enemies  in  his  Scottish  dominion, 
he  was  called  to  the  English  throne. 

James  was  already  an  experienced  king,  and  it  is  not 

therefore  strange  that  he  held  definite  views  of  kingcraft. 

While  sitting  in  his  Scottish  council,  he  had  literally  felt 

the  heavy  hand  of  a  sturdy  follower  of  Knox  who  told 

1  Greene's  History  of  the  English  People,  Vol.  III.,  pp.  50-54. 


CHAP.  XXI    THE  CROWN  AND  THE  HOUSE  OF  COMMONS        255 

the  King  to  his  teeth,  "  There  are  two  kings  and  two  king- 
doms in  Scotland.  There  is  Christ  Jesus,  the  King,  and 
His  kingdom,  the  Kirk,  whose  subject  James  the  Sixth  is, 
and  of  that  kingdom  not  a  king,  nor  a  lord,  nor  a  head, 
but  a  member."  Christ,  he  declared,  had  given  full  power 
to  His  Church,  and  it  was  the  duty  of  a  king  to  assist 
those  whom  Christ  had  set  over  His  Church,  not  to  con- 
trol them.  But  James  was  as  much  a  Calvinist  as  were 
the  followers  of  Knox.  He,  too,  accepted  the  Bible  as 
the  voice  of  God.  If  we  follow  appearances,  we  are 
bound  to  say  that  he  was  as  honest  and  as  sincere  in  this 
as  were  the  Presbyterians.  Before  he  became  an  English 
king,  he  had  received  a  sign  in  which  the  Presbyterians 
were  lacking.  He  had  been  exalted  while  his  enemies 
had  been  abased. 

There  was  no  thought  of  separating  religion  from 
government  either  on  the  part  of  James  or  on  that  of 
the  Presbyterians.  Toleration  was  not  dreamed  of  by 
either.  The  Presbyterian  theory  made  all  men  equal 
before  God,  and  it  made  an  elected  assembly  of  the  clergy 
the  visible  expression  of  God's  government  on  earth. 
James's  theory  made  the  King  the  head  of  the  Kingdom 
of  God  on  earth.  In  his  view,  to  abandon  his  office  as 
king  was  treason  against  Jehovah ;  it  was  to  invite  the 
return  of  violence  and  barbarism  which  it  was  the  high 
mission  of  his  House  to  banish  from  Scotland.  It  was 
quite  reasonable  for  him  to  say  at  an  early  conference  held 
in  his  new  kingdom,  "  The  Presbytery  agreeth  as  well 
with  monarchy  as  God  with  the  devil."  Episcopacy,  as 
then  seen  in  England,  agreed  entirely  with  monarchy, 
because  the  bishops  under  the  Tudor  monarchs  were 
subservient  to  the  kings.  In  James's  view  the  bishops 
were  an  essential  part  of  divinely  ordained  kingship. 
James  felt  sure  that  he  could  govern  Scotland,  and  it 
was  but  natural  that  he  should  expect  to  govern  England 


256         GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xxi 

with  comparative  ease.  The  Tudor  monarchy  in  England 
had  been  the  example  and  the  inspiration  to  Stuart  mon- 
archs  in  their  desperate  efforts  to  bring  order  out  of 
chaos  in  Scotland.  James's  theory  of  government  did 
not  seem  to  be  at  all  out  of  harmony  with  the  past  or 
the  present  government  of  England.  He  had  no  more 
objection  to  government  by  means  of  Parliaments  than 
he  had  to  government  by  means  of  bishops.  He  simply 
expected  Parliaments  to  work  in  harmony  with  the  Sover- 
eign as  did  the  bishops  and  as  had  mainly  been  the  habit 
of  Parliaments  both  in  England  and  in  Scotland.  A  Par- 
liament without  the  Monarch  was  no  Parliament.  If  at 
any  time  one  of  the  fractions  of  a  Parliament  had  been 
made  a  tool  of  the  King's  enemies  in  the  State,  the  cir- 
cumstances had  been  such  as  to  give  no  support  to  the 
view  that  such  a  fraction  was  in  itself  a  thing  to  be 
dreaded  by  mighty  kings. 

The  arguments  of  the  lawyers  who  contended  for 
the  power  of  the  Commons  must  have  struck  James 
as  singularly  feeble  and  incoherent  compared  with  the 
arguments  of  the  members  of  the  Presbyterian  Assembly 
who  had  been  drilled  in  the  school  of  John  Knox. 
These  lawyers  conceded  that  James  rightly  held  in  his 
hands  the  agencies  of  government;  they  simply  insisted 
that  he  should  act  in  accordance  with  what  they  deemed 
to  be  the  law.  To  James  this  seemed  a  weak  sort 
of  exhortation  or  preaching,  and  one  who  had  with- 
stood the  preaching  of  Knox  in  the  days  of  his  youth 
was  not  likely  to  be  greatly  affected  by  such  exhorta- 
tions in  his  mature  manhood.  When  this  fraction  of  a 
Parliament  (the  House  of  Commons)  virtually  claimed 
that  it  was  the  true  representative  of  the  English  nation ; 
that  it  was  practically  the  sole  source  of  both  law  and 
supply;  that  in  defiance  of  the  known  will  of  the  King 
it  could  determine  the  policy  of  the  government;   that 


CHAP.  XXI    THE  CROWN  AND  THE  HOUSE  OF  COMMONS        257 

the  King  as  well  as  his  ministers  was  but  the  servant  of 
the  law ;  and  that,  the  House  of  Commons  being  the  chief 
source  of  law,  the  King  and  his  ministers  were  but  ser- 
vants of  this  fraction  of  a  Parliament,  —  it  was  but  natural 
that  he  should  think,  if  he  did  not  say,  "Such  a  House 
of  Commons  agree th  as  well  with  monarchy  as  God  with 
the  devil."  Such  a  claim  James  was  prepared  to  resist 
to  the  last.  Rather  than  yield  to  such  a  claim  the  son 
of  James  chose  to  die. 

Some  modern  historians  have  hit  upon  the  theory  that 
at  some  time  or  other  before  the  Tudors  there  had  been 
a  golden  era  of  parliamentary  rule,  and  have  comforted  us 
with  the  notion  that  the  parliamentary  party  in  the  time 
of  the  Stuarts  was  sustained  by  the  remembrance  of  that 
past  age.  It  is  certainly  true  that  some  of  the  members 
of  the  party  used  language  which  is  fitted  to  suggest  a 
belief  in  the  ancient  high  powers  of  Parliament.  But 
they  drew  support  from  events  in  the  time  of  the  Tudors 
as  well  as  from  the  earlier  history.  They  ransacked  all 
history  for  arguments. 

Any  one  who  takes  the  trouble  to  give  attention  to  the 
ordinary  method  of  political  argument  will  clearly  per- 
ceive that  it  is  not  at  all  necessary  that  history  should 
be  true  in  order  to  be  useful.  The  uninterrupted  exist- 
ence of  something  that  can  be  called  Parliament,  with 
such  acts  as  in  the  nature  of  the  case  became  associated 
with  such  an  institution,  was  just  as  useful  to  the  par- 
liamentary party  of  the  Stuart  period  as  would  have  been 
the  most  conclusive  proofs  of  the  high  powers  of  Par- 
liament in  the  remote  past.  It  is  an  egregious  blunder 
to  assume  that  in  such  a  contest  the  chief  motive  for 
action  ever  comes  from  a  theory  of  the  remote  past. 

The  lawyers,  merchants,  and  country  gentlemen  were 
in  many  ways  made  to  feel  that  since  the  Crown,  the 
higher  nobility,  and  the  bishops  were  at  one,  they  were 


258  GROWTH   OF  THE   ENGLISH  CONSTITUTION    chap,  xxi 

themselves  next  called  upon  to  resist  the  encroachments 
of  absolute  government.  The  House  of  Commons  was 
their  most  convenient  organ.  By  reading  history  back- 
ward we  can  see  that  it  was  of  immense  advantage  to 
this  party  that  the  blunt  fanatical  Stuart  kings  boldly 
put  forward  their  theory  of  divine  right.  There  had 
been  no  time  in  the  remote  past  when  there  was  any  sense 
in  maintaining  a  persistent  theory  about  the  powers  of 
either  the  House  of  Commons  or  the  Crown.  When 
Henry  VIII.  wrote  to  the  Pope  that  the  House  of  Com- 
mons was  accustomed  to  discuss  and  decide  things  freely, 
he  was  doubtless  playing  his  old  trick  of  making  the 
Commons  a  scapegoat  for  those  acts  of  his  own  which 
were  obnoxious  to  the  Pope.  When,  in  the  time  of  the 
Wars  of  the  Roses,  Fortescue  recorded  the  remark  that 
the  "kynge  may  not  rule  his  peple  bi  other  lawes  than 
such  as  thai  assenten  unto,"^  he  was  indulging  in  mere 
academic  talk.  Neither  in  his  nor  in  any  previous  day 
had  there  been  any  definite  theory  of  the  powers  of  dif- 
ferent governmental  agencies  which  either  controlled  or 
greatly  influenced  the  politics  of  the  day.  But  when  in 
Scotland  a  divinely  ordained  republican  Kirk  was  met  and 
restrained  by  a  divinely  ordained  king,  then  there  were 
injected  into  politics  conflicting  theories  of  government 
which,  independently  of  any  definite  governmental  policies, 
did  influence  and  did  tend  to  dominate  politics.  It  is  not 
possible  to  understand  the  modern  English  Constitution 
unless  we  see  clearly  that  this  was  something  new  in 
English  history. 

Without  these  rigid  contradictory  theories  it  is  difficult 
to  see  how  the  House  of  Commons  could  ever  have  been 
advanced  to  the  practical  attainment  of  all  that  the 
Presbyterian  Assembly  claimed.  Without  the  martyr- 
king,  on  the  other  hand,  it  is  not  likely  that  the  promotion 
1  Pluramer's  Fortescue  on  the  Gouvernance  of  England,  p.  109. 


CHAP.  XXI    THE  CROWN  AND  THE  HOUSE  OF  COMMONS        259 

of  the  House  of  Commons  would  have  been  accompanied 
by  the  careful  preserving  of  all  the  consecrated  forms  of 
monarchy.  In  the  time  of  Elizabeth  the  upholders  of  the 
privileges  of  Parliament  had  much  difficulty  in  answering 
the  defenders  of  the  Crown.  The  Queen  did  nothing 
v^hich  was  not  according  to  the  customs  of  former 
monarchs.  Even  the  Lancastrians  imprisoned  members 
of  Parliament  for  making  objectionable  statements.  In 
still  earlier  times  an  archbishop  risked  his  head  when  he 
dared  to  oppose  the  King's  will  in  the  national  assembly. 
The  most  effective  answer  which  the  parliamentary  party 
could  make  to  the  court  lawyers  was  to  shout  the  word 
"  Privilege  "  in  louder  tones  and  to  threaten  to  make  the 
business  of  government  more  disagreeable  if  their  wishes 
were  not  respected. 

But  when  James  and  Charles  put  forth  their  theory  of 
divine  right,  they  shocked  the  sensibilities  of  the  English 
nation.  This  doctrine  was  not  only  new  ;  it  could  easily 
be  made  to  appear  both  dangerous  and  revolutionary  also. 
It  seemed  to  mean  that  the  King  could  rule  without  a 
Parliament,  and  the  statement  of  such  a  theory  made  it 
possible  for  the  first  time  for  parliamentary  lawyers  to 
appeal  Avith  effect  to  English  history.  Without  such  an 
issue  the  parliamentary  party  was  weak,  especially  so  in 
its  appeal  to  history ;  with  such  an  issue,  the  party  was 
strong,  not  only  in  the  prejudices  of  the  English  nation 
against  foreign,  innovating  kings,  but  also  in  its  appeal  to 
history.  Had  ever  a  king  ruled  in  England  who  was  not 
crowned  by  Parliament  ?  Had  not  Parliament  again  and 
again  removed  one  king  from  office  and  set  up  another  ? 
Did  not  these  very  Stuart  kings  rely  in  large  part  for 
their  title  to  the  throne  upon  the  acts  of  Parliament  ? 
With  such  an  issue  men  were  forced  to  think  of  Parlia- 
ment as  an  institution  apart  from  the  King.  When  this 
analysis  was  for  the  first  time  forced  into  the  minds  of 


260         GROWTH   OF   THE   ENGLISH  CONSTITUTION    chap,  xxi 

Englishmen,  there  ensued  a  strong  natural  tendency  to 
look  upon  the  elected  part  of  Parliament  as  peculiarly 
representative  of  the  English  nation. 

To  understand  the  modern  Constitution  it  is  necessary 
to  perceive  that  both  the  theory  of  the  Stuart  kings  and 
that  of  the  opposing  parliamentary  party  have  been  pre- 
served and  harmonized  the  one  with  the  other.  Not  only 
have  the  consecrated  forms  of  monarchy  survived,  but 
those  forms  still  hold  important  relations  to  the  working 
of  the  Cabinet.  And  in  the  office  of  Prime  Minister 
absolute  rule  may  be  seen  working  in  harmony  with  a 
democratic  House  of  Commons.  Hence  the  Stuart  theory 
of  monarchy  may  be  said  to  have  contributed  not  only 
form  but  substance  as  well  to  the  present  Constitution. 


CHAPTER   XXII 

THE  EARLY  STUARTS  AND  THE  COURTS 

n^HE  state  of  the  judiciary  in  the  time  of  James  I. 
-^  throws  light  on  the  modern  Constitution.  On  his 
way  to  London  to  be  crowned,  James  ordered  a  thief  to 
be  hanged  without  benefit  of  judge  or  jury.^  This  may 
have  been  an  expression  of  the  exuberant  spirits  of  the 
new  sovereign  in  view  of  the  summary  powers  of  the 
kingship  to  which  he  had  fallen  heir.  The  incident 
shows,  however,  that  the  new  king  did  not  appreciate  the 
reverence  for  law  and  its  forms  which  had  grown  up  in 
England.  But  in  dealing  with  the  high  courts  of  the 
realm  James  appears  to  better  advantage.  Failing  to  get 
adequate  supplies  from  his  first  Parliament,  he  followed 
the  example  of  former  kings  and  collected  a  duty  on  cur- 
rants. A  merchant  by  the  name  of  Bates  refused  payment, 
and  his  case  was  brought  before  the  Court  of  the  Ex- 
chequer, where  he  pleaded  that  such  an  impost  was  illegal 
without  the  sanction  of  Parliament.  The  judges  decided 
in  favour  of  the  King,  and  in  the  arguments  accompanying 
the  decision  they  touched  upon  a  subject  of  great  diffi- 
culty from  the  standpoint  of  the  parliamentary  party. 
To  the  King,  they  said,  belonged  the  responsibility  of 
governing;  and  in  the  nature  of  the  case  government 
involves  a  large  amount  of  discretionary  power.  The 
judges  in  Bates's  case  drew  a  distinction  between  private 

1  Charles  Knight,  The  Popular  History  of  England,  Vol.  III.,  p.  308. 

261 


262        GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xxii 

rights,  where  common  law  and  parliamentary  action 
should  prevail,  and  acts  for  the  public  good  where  the 
absolute  power  of  the  King  should  prevail.  According  to 
this  theory,  the  absolute  power  of  the  King  extends  to  all 
matters  of  foreign  relations.  The  collection  of  a  duty 
upon  a  foreign  import  pertains  to  foreign  affairs  and  is 
hence  a  part  of  the  discretionary  power  of  the  King.  We 
know  how,  in  later  times,  the  parliamentary  party  solved 
this  difficulty  by  taking  out  of  the  hands  of  the  monarch 
the  responsibility  of  governing.  In  the  time  of  James  no 
one  had  dreamed  of  such  a  solution.  Had  James  I.  and 
Charles  I.  only  been  moderate  and  husbanded  those  mani- 
fest advantages  which  custom  had  conceded,  it  would  have 
been  better  for  their  cause. 

Even  before  the  decision  in  Bates's  case  James  had  got 
the  better  of  his  Parliament  by  means  of  the  courts.  He 
was  anxious  to  have  his  Scottish  subjects  naturalized  as 
subjects  of  England.  Parliament  refused  to  comply  with 
this  wish.  He  then  presented  a  case  to  the  courts  in 
which  an  infant,  born  in  Scotland  after  the  accession  of 
James  to  the  throne  of  England,  claimed  a  right  to  inherit 
property  as  an  English  subject.  The  judges  decided  in 
favour  of  the  infant.  This  decision  had  the  effect  of 
naturalizing  all  Scottish  subjects  of  the  King  born  after 
his  accession  to  the  throne  of  England.  Thus  the  King 
secured  through  judicial  decision  a  law  which  Parliament 
had  refused. 

Later,  James  suffered  a  rebuff  at  the  hands  of  the  Chief 
Justice,  Sir  Edward  Coke.  The  King  proposed  to  regu- 
late by  proclamation  the  building  of  houses  in  London 
and  to  forbid  the  manufacture  of  starch  from  wheat.  On 
consulting  the  Chief  Justice  and  certain  other  judges  as 
to  the  legality  of  such  proclamations  he  received  from 
them  a  clear  and  emphatic  opinion  to  the  effect  that  the 
proposed  proclamations  were  illegal ;  that  the  King  could 


CHAP.  XXII      THE  EARLY  STUARTS  AND  THE   COURTS         263 

not  create  an  offence  by  proclamation,  nor  in  any  way 
alter  existing  laws.  Furthermore  it  was  declared  illegal 
for  the  King  to  punish  in  the  Court  of  the  Star  Chamber 
any  one  for  an  oifence  which  was  not  at  the  same  time 
punishable  in  the  ordinary  courts.  These  opinions  of  the 
Chief  Justice  were  in  after  times  universally  accepted  as 
good  law.  At  the  time  they  were  delivered  they  gave 
weight  to  the  contention  of  the  parliamentary  party  in 
the  House  of  Commons.  But  for  his  championship  of 
the  parliamentary  cause,  the  Chief  Justice  was  degraded 
from  his  office  and  imprisoned  in  the  Tower.  The  high 
courts  were  filled  with  judges  who  were  subservient  to 
the  King.  Even  the  claim  of  Charles  I.  to  the  right  of 
levying  a  tax  on  all  England  under  the  name  of  "  ship- 
money  "  received  the  sanction  of  the  courts. 

After  the  contest  with  Coke  and  his  associates,  the 
ordinary  courts  were  subservient.  Justice  had  been  poi- 
soned at  the  source.  The  Star  Chamber  was  now  an  old 
and  venerated  institution.  Apparently  it  was  as  effec- 
tive an  agency  in  the  hands  of  the  Stuarts  as  it  had  been 
in  the  hands  of  the  Tudors.  At  no  time  did  the  Star 
Chamber  inflict  the  death  penalty,  but  it  could  compass 
the  destruction  of  the  King's  enemies  through  the  rigours 
of  a  prison,  through  mutilations  of  the  body,  through 
banishment  and  confiscations.  Other  arbitrary  courts 
remained  which  could  inflict  the  death  penalty.  The 
court  of  the  Council  of  the  North  and  courts  on  the 
borders  of  Wales  entirely  superseded  the  common  law 
courts  in  those  regions.  In  parts  of  England  where  the. 
arbitrary  courts  established  by  law  seemed  to  be  inade- 
quate, the  King,  through  the  exercise  of  that  discretionary 
power  for  the  public  safety  which  the  courts  conceded  to 
him,  could  set  up  military  courts  for  the  punishment  of 
his  enemies.  There  also  was  the  High  Commission  Court, 
established   in   the   time   of   Elizabeth,    which   exercised 


2G4         GROWTH   OF   THE   ENGLISH   CONSTITUTION    chap,  xxii 

jurisdiction  over  moral,  religious,  and  ecclesiastical  of- 
fences. In  the  hands  of  subservient  bishops  this  court  was 
a  mighty  weapon  for  the  use  of  James  and  Charles.  The 
House  of  Lords  was  also  a  high  court  of  appeal,  and 
its  decisions  were  usually  favourable  to  the  King. 

It  is  difficult  to  understand  how  the  House  of  Commons 
could  have  withstood  such  an  array  of  judicial  and  admin- 
istrative power  if  the  House  itself  had  not  also  been  a 
recognized  high  court  of  the  realm.  From  the  earliest 
times,  the  local  courts  in  England  were  engaged  in  all 
sorts  of  governmental  business.  Law-making,  law-execut- 
ing, and  law-interpreting  were  so  blended  together  as  to 
defy  distinct  analysis.  The  King,  through  his  courts, 
was  at  the  same  time  discovering,  declaring,  interpreting, 
and  executing  laws ;  and  to  attempt  to  analyze  this  busi- 
ness into  distinct  departments  leads  to  confusion  and 
error.  From  the  beginning,  the  King  and  his  high  courts 
embodied  all  the  powers  of  government.  The  chief  reason 
why  this  government  was  not  absolute  was  that  at  all 
times  there  were  those  in  the  kingdom  who  would  not 
obey  it. 

In  the  time  of  the  early  Stuarts  no  one  had  thought  of 
limiting  the  government  by  dividing  it  into  departments. 
It  was  more  difficult  in  the  time  of  James  I.  for  a  citizen 
to  conceive  of  a  government  divided  into  departments 
than  it  is  for  an  American  to  conceive  of  a  government 
having  legislative,  executive,  and  judicial  functions  united 
in  the  same  hand.  The  King  expressed  the  unity  and 
simplicity  of  government.  The  King,  the  Lords,  and  the 
Commons  at  the  end  of  the  sixteenth  century  had  held 
together  so  long  that  they  had  become,  in  a  sense,  a  single 
undivided  ruler.  An  action  might  originate  in  one  por- 
tion of  this  compound  ruler,  but  it  was  no  act  of  govern- 
ment if  it  did  not  express  the  will  of  the  entire  ruling 
power. 


CHAP.  XXII      THE   EARLY   STUARTS  AND   THE   COURTS         265 

An  American  who  has  not  made  a  special  study  of  the 
history  of  his  ancestors,  has  difficulty  in  understanding 
how  the  veto-power  dropped  out  of  the  English  Consti- 
tution. The  explanation  is  found  in  this  persistent  unity 
of  government.  It  is  interesting  to  observe  that  the  seeds 
of  empire  were  planted  by  Englishmen  in  the  New  World 
just  at  the  time  when  a  new  theory  of  kingship  forced 
into  prominence  for  the  first  time  the  possibility  of 
dividing  government  into  separate  legislative  and  execu- 
tive branches.  For  centuries,  indeed,  courts  had  existed 
which  attended  to  judicial  business  alone,  but  every  im- 
portant governmental  agency  had  also  a  measure  of 
judicial  power.  The  House  of  Commons  was  itself  a 
court  of  record,  and  it  was  also  a  part  of  the  undivided 
sovereign  authority.  As  a  court  it  acted  upon  its  own 
motion  and  in  defence  of  the  privilege  of  its  own  mem- 
bers. In  1543,  at  a  time  when  royal  power  was  at  its 
height,  the  House  of  Commons  sent  its  sergeant  to 
demand  the  release  of  one  of  its  members  who  had 
been  imprisoned  for  debt.  The  jailer  and  sheriffs  of 
London  refused  to  comply,  and  maltreated  the  sergeant; 
whereupon  the  sheriffs  and  the  jailer  were  arraigned 
before  the  House  for  contempt  of  court  and  committed  to 
prison,  the  King  expressing  in  strong  terms  his  approval 
of  the  action.  In  the  time  of  Elizabeth  the  House  inter- 
fered to  protect  a  servant  of  a  member  from  a  court  of 
law.  In  several  instances  men  were  committed  to  the 
Tower  for  assaults  upon  members.  While  the  King  had 
so  much  of  judicial  support,  it  was  of  great  consequence 
that  the  House  of  Commons  was  also  able  to  vindicate 
its  position  as  an  independent  court  of  record  on  matters 
touching  the  privilege  of  members. 

Much  power  also  rested  with  the  Lower  House  on  ac- 
count of  its  relation  to  the  trial  of  high  officers  of  State. 
Impeachment  of  ministers  began  in  the  time  of  Edward  II. 


266        GROWTH  OF  THE   ENGLISH  CONSTITUTION    chap,  xxii 

In  trials  of  that  sort  the  House  of  Commons  appeared  as 
the  accuser,  the  House  of  Lords  sitting  as  a  court  to  hear 
and  render  judgment.  In  these  high  state  trials,  the 
sense  of  unity  in  government  was  so  strong  that  when 
one  part  acted  it  almost  determined  the  action  of  all  other 
parts.  That  is,  when  the  Commons  impeached  an  officer, 
it  was  expected  that  the  Lords  would  convict  him,  and  that 
the  King  would  perforce  add  his  approval.  When  there 
came  to  be  a  settled  conflict  between  King  and  Commons 
it  was  therefore  of  great  consequence  that  the  House  of 
Commons  was  the  first  to  act  in  cases  of  impeachment. 
Bacon  and  other  ministers  of  James  were  impeached,  con- 
victed, and  removed  from  office.  Buckingham,  Charles's 
favourite,  was  seriously  threatened,  and,  later,  Wentworth 
and  Laud  were  got  rid  of. 

It  is  from  the  State  trials  in  the  high  court  of  Parliament 
that  the  doctrine  of  ministerial  responsibility  has  been  per- 
fected. At  no  time  was  it  deemed  proper  to  put  the  King 
on  trial,  because  the  King  was  the  head  of  the  court.  It 
would  be  like  trying  the  Chief  Justice  in  his  own  court 
while  he  was  still  Chief  Justice.  But  the  minister  who 
obeyed  the  King's  orders  might  be  punished.  The  court 
assumed  that  the  minister  advised  the  thing  done,  though 
he  might  have  been  known  to  have  advised  just  the 
opposite.  Parliament,  as  a  high  court,  made  good  the 
claim  that  the  minister  is  responsible  and  punishable, 
although  the  King  may  have  ordered  the  ministerial  act. 
In  harmony  with  this  view  has  been  developed  the  prin- 
ciple that  all  officers  are  individually  responsible  for 
an  illegal  act,  even  though  the  act  may  be  ordered  by 
a  superior  whom  they  are  bound  by  law  to  obey. 

There  was  another  method  of  procedure  capable  of 
being  used  with  still  more  terrible  force  against  the 
King's  officers ;  that  was  the  bill  of  attainder.  An  im- 
peachment  required   that  at  least  the  forms  of   a  trial 


CHAP.  XXII      THE  EARLY  STUARTS  AND  THE   COURTS         267 

should  be  observed.  In  such  a  case  difficulties  might 
arise  in  securing  conviction  in  the  House  of  Lords.  The 
House  of  Commons  first  proceeded  against  Wentworth 
and  Laud  by  impeachment.  But  on  account  of  delays 
and  obstacles  in  the  House  of  Lords,  it  accomplished  their 
destruction  by  bills  of  attainder.  Notwithstanding  the 
fact  that  the  great  body  of  the  Lords  were  in  sympathy 
with  the  culprits,  such  was  the  force  of  the  principle  of 
the  unity  of  government  that  in  these  high  acts  of  state 
the  Lords  gave  approval  to  the  bills.  Formerly,  in  these 
state  trials,  Parliament  had  been  a  mere  tool  in  the  hands 
of  the  King  or  in  those  of  an  armed  faction ;  now  the 
House  of  Commons,  through  the  prescriptive  unity  of  the 
ruler,  was  able  to  take  to  itself  a  part  of  the  sovereign 
action  of  the  united  government. 


CHAPTER  XXIII 

A  SOVEREIGN  KING    VERSUS  A   SOVEREIGN  PARLIAMENT 

rpHROUGHOUT  the  whole  of  English  history  the  get- 
-*-  ting  of  money  troubled  the  kings  as  did  no  other 
sort  of  business.  From  the  meanest  peasant  to  the 
haughtiest  noble,  the  people  cherished  a  high  apprecia- 
tion of  the  right  of  individual  possession.  They  would 
not  consent  to  give  their  money  unless  they  were  prom- 
ised something  in  return.  The  weak  classes  were  for 
generations  subjected  to  exactions  at  the  hands  of  the 
strong ;  yet  this  was  never  carried  to  the  extent  of 
breaking  their  spirits.  We  have  seen  how  the  first 
Tudors,  the  mightiest  of  monarchs,  quailed  before  re- 
sisting peasants  and  citizens.  Even  when  his  Parliament 
had  voted  him  a  tax,  Henry  VII.  had  difficulty  in  col- 
lecting it,  and  found  it  easier  to  levy  upon  the  defence- 
less rich.  Henry  VIII.  had  a  similar  experience  and  pur- 
sued a  similar  policy.  Elizabeth,  having  no  rich  classes 
whom  she  could  conveniently  rob,  solved  the  problem  by 
carefully  making  use  of  the  arbitrary  methods  of  raising 
revenue  still  left  to  the  Crown  ;  while,  for  the  rest,  she 
refused  to  spend  more  than  the  Commons  would  grant. 
England  was  one  of  the  richest  countries  in  the  world, 
and  James  I.  did  not  at  all  appreciate  the  obstacles  in 
the  way  of  securing  the  income  necessary  to  the  govern- 
ment. He  had  all  the  arbitrary  courts  which  the  early 
Tudors  used,  but  he  lacked  the  rich  and  helpless  classes. 

268 


CHAP.  XXIII  KING  VERSUS  PARLIAMENT  269 

The  nobles  and  the  bishops,  who  were  the  descendants  of 
the  rich  classes  that  the  Tudors  had  robbed,  were  James's 
strongest  supporters.  The  merchants,  the  country  gen- 
tlemen and  the  lawyers,  who  had  been  the  chief  support- 
ers of  the  early  Tudors,  had  never  been  accustomed  to 
surrender  property  in  large  amounts  at  the  demand  of  an 
arbitrary  court.  The  leaders  in  the  House  of  Commons 
knew,  as  James  and  Charles  did  not  know,  the  nation's 
reserve  power  of  resistance  to  arbitrary  exactions.  It 
was  of  immense  advantage  to  the  Commons  that  in  the 
contest  with  the  King  they  appeared  at  the  same  time  to 
be  the  champions  of  the  people  against  arbitrary  exac- 
tions. Against  the  new  theory  of  divine  right  the  Com- 
mons had  as  a  defensive  weapon  the  old  habit  of  asking 
favours  and  insisting  upon  redress  of  grievances  before 
granting  supplies.  Under  the  new  issue  with  the  Crown 
this  old  habit  takes  on  a  new  meaning.  From  the  stand- 
point of  the  King,  Parliament  was  simply  one  of  the  many 
agencies  in  his  hand  for  getting  supplies.  These  agencies 
were  all  equally  legal  and  equally  righteous.  Sovereignty 
was  viewed  as  a  simple  thing,  and  in  the  last  analysis, 
according  to  the  royal  theory,  sovereignty  rested  with  the 
Sovereign.  Upon  his  theory  it  was  the  duty  of  the  Com- 
mons to  vote  supplies.  If  they  refused  to  do  this,  it  be- 
came the  duty  of  the  King  to  collect  the  supplies  without 
the  vote  of  the  Commons.  If  the  Commons  persisted  in 
refusing  necessary  taxes,  then  the  House  of  Commons  be- 
came obstructive,  unconstitutional,  and  revolutionary.  In 
support  of  this  view  the  King  and  his  lawyers  appealed  to 
history. 

The  Commons  also  appealed  to  history  in  support  of 
their  ancient  and  undoubted  right  to  vote  or  withhold 
supplies.  They,  too,  held  to  the  notion  of  the  unity  and 
simplicity  of  sovereign  power.  They  had  long  ago  vindi- 
cated their  right,  as  against  the  House  of  Lords,  to  con- 


270      GROWTH  OF  THE  ENGLISH  CONSTITUTION    chjlp.  xxiii 

trol  the  votes  of  supply.  Now,  forced  to  an  issue  with 
the  King,  they  made  the  further  claim  that  in  the  matter 
of  appropriations  the  Commons  represented  the  sovereign 
power  of  the  nation.  Under  this  theory  the  King  was 
reduced  to  a  state  of  a  mere  petitioner.  They  would 
grant  him  supplies  or  withhold  them  as  they  pleased. 
They  asserted  in  even  louder  tones  than  the  court  law- 
yers had  done  that  their  view  was  in  accord  with  the 
ancient  and  unchanging  Constitution  of  the  English 
government.  In  this  debate  the  idea  of  an  ancient  and 
unchanging  Constitution  was  born,  and  two  theories 
regarding  it  became  prominent.  One  made  the  king  the 
predominant  power;  the  other,  the  nation  through  the 
House  of  Commons.  According  to  the  theory  of  James 
and  Charles  these  two  views  of  the  English  Constitution 
were  contradictory  and  impossible.  The  events  of  the  first 
half  of  the  seventeenth  century  would  indicate  that  this 
view  was  correct.  Yet  it  is  the  mystery  of  the  Constitu- 
tion of  to-day  that  both  of  these  views  have  survived,  and 
that  they  have  actually  been  harmonized  with  each  other. 
The  lawyers  in  the  House  of  Commons  seemed  to  see 
clearly,  if  modern  historians  have  not,  that  their  strongest 
argument  in  this  emergency  was  not  found  in  past  history, 
but  in  present  politics.  From  ancient  history  and  from 
their  new  theory  the  Commons  found  themselves  in 
possession  of  but  a  small  fragment  of  sovereign  power. 
From  the  standpoint  of  pure  logic,  their  position  was 
not  enviable ;  but  from  the  standpoint  of  contempo- 
rary politics,  it  was  superb.  Here  was  a  foreign  and 
unpopular  king  who  insisted  upon  a  wholly  new  theory 
of  absolute  sovereignty ;  yet  he  asked  supplies  of  the 
House  of  Commons.  By  the  simple  process  of  forcing 
the  King  to  concede  something,  no  matter  what,  to  the 
demands  of  the  Commons,  as  a  condition  of  the  granting 
of  supplies  it  would  be  demonstrated  that  the  so-called 


CHAP.  XXIII  KING  VEBSUS  PARLIAMENT  271 

sovereign  was  limited,  and  the  germ  of  sovereignty  which 
the  Commons  claimed  would  thenceforth  grow,  and  in 
course  of  time  the  Commons  would  be  practically  sover- 
eign in  the  making  of  laws  and  in  the  determining  of 
policies.  It  is  not  necessary  to  assume  that  the  party 
of  the  Commons  had  any  clear  vision  of  the  remote  results 
of  their  contention.  They  did,  however,  see  clearly  the 
desirability  of  checking  the  growth  of  the  divine-right 
theory  by  compelling  the  King  to  act  inconsistently  with 
his  theory  whenever  he  asked  for  supplies.  This  policy, 
independently  of  any  definite  intention,  tended  to  transfer 
the  notion  of  sovereignty  from  the  Monarch  to  the  nation, 
and  to  the  House  of  Commons,  as  the  best  representative 
of  the  nation. 

Both  James  and  Charles  were  wont  to  think  that  they 
could  outwit  their  Parliaments  by  appearing  to  yield,  and 
then  could  gain  their  points  through  the  exercise  of  arbi- 
trary power.  They  were  doubtless  conscientiously  of  the 
opinion  that  they  were  not  bound  by  promises  made  under 
compulsion.  In  this  they  were  not  unlike  the  Tudors, 
but  they  differed  from  the  Tudors  in  that  they  habitually 
aroused  suspicion.  Notwithstanding  the  fact  that  these 
sovereigns  claiming  divine  right  were  again  and  again 
forced  to  make  concessions  to  the  demands  of  the  Com- 
mons, they  seemed  to  think  that  it  added  to  their  dignity 
openly  to  claim  that  they  were  not  bound  by  such  action. 
They  even  took  this  view  of  the  solemn  assent  to  statutes 
enacted  in  full  Parliament. 

The  chief  concessions  on  the  part  of  the  Kings  were  in 
course  of  time  summed  up  in  the  great  act  known  as  the 
Petition  of  Right,  wrung  from  Charles  I.  by  his  third 
Parliament.  This  act  required  in  the  most  explicit  terms 
that  the  King  should  abolish  the  principal  abuses  of 
which  for  thirty  years  the  Commons  had  complained,  and 
should  rule  according  to  laws  established  by  Parliament. 


272      GROWTH  OF  THE   ENGLISH  CONSTITUTION    chap,  xxiii 

Charles's  conduct  clearly  showed  that  he  had  no  intention 
of  obeying  the  new  law.  Before  granting  the  petition  he 
had  endeavoured,  through  his  friends  in  the  House  of 
Lords,  to  have  a  clause  inserted  '^  saving  intact  the  sover- 
eign power  of  the  King."  This  gave  to  Sir  Edward  Coke 
and  other  parliamentary  lawyers  a  fine  opportunity  to 
emphasize  the  contention  that  the  laws  of  England  were 
sovereign.  "  The  statutes,"  said  Coke,  "  are  absolute  with- 
out any  saving  '  sovereign  power.'  Magna  Charta  is  such 
a  fellow  that  he  will  have  no  'sovereign.'  I  wonder  this 
'  sovereign '  was  not  in  Magna  Charta,  or  in  the  confirma- 
tions of  it.  If  we  grant  this,  by  implication  we  give  a 
'sovereign  power '  above  all  law."  The  Commons  refused 
to  admit  the  saving  clause,  and  the  King  ultimately 
granted  the  Petition  in  its  original  form. 

The  habit  of  reverence  for  law  which  had  been  so  thor- 
oughly drilled  into  the  English  people  during  the  entire 
Tudor  period  was  now  of  great  value.  We  have  seen 
that  even  in  their  most  high-handed  acts  the  Tudors  were 
scrupulous  in  observing  the  forms  of  law.  James  and 
Charles,  in  their  contentions  with  the  Commons,  suffered 
themselves  gradually  to  acquire  the  reputation  of  law- 
breakers. To  the  man  who  thinks  the  King  a  law-breaker 
that  king  cannot  at  the  same  time  appear  to  be  sover- 
eign ;  and,  for  the  multitude,  if  the  King  does  not  repre- 
sent the  sovereign  power,  then  Parliament  does.  Sir 
Edward  Coke  and  a  few  lawyers  may  have  satisfied  their 
own  minds  by  conceiving  of  abstract  law  as  sovereign, 
but  such  a  notion  would  have  little  force  with  the  masses 
of  the  people.  They  would  have  a  government  which 
they  could  see.  If  the  King  was  not  the  head  of  that 
government,  then  the  two  Houses  were  the  head.  Thus 
it  became  natural  to  associate  all  the  past  history  of  Eng- 
land with  the  Parliament,  that  is,  the  two  Houses  apart 
from  the  Monarch,  as  the  sovereign  agency  of  law.     Not 


CHAP.  XXIII  KING   VERSUS  PARLIAMENT  273 

only  Magna  Charta,  but  all  the  former  liberties  of  Eng- 
lishmen, now  became  associated  with  this  ever-existing 
national  assembly ;  and  from  this  time  on  the  glories  of 
the  Constitution  were  more  and  more  thought  to  radiate 
from  the  two  Houses  of  Parliament.  The  King's  blunt 
claim  to  a  right  to  disobey  the  law  tended  to  arouse  the 
rebellion  which  culminated  in  his  execution. 

The  circumstances  giving  rise  to  the  Petition  of  Right 
were  as  different  as  can  be  imagined  from  those  which 
led  to  Magna  Charta.  The  entire  atmosphere  enveloping 
Magna  Charta  is  shadowy  and  indefinite.  We  are  not 
quite  sure  that  the  meeting  at  Runnymede  ought  to 
be  called  a  legal  national  assembly.  The  terms  of  the 
charter  are  broad  enough  to  admit  nearly  all  things  good 
and  glorious  which  ever  have  been  or  ever  may  be  found 
in  the  history  of  human  liberty.  The  American  rightly 
feels  as  deep  an  interest  in  Magna  Charta  as  does  the 
Englishman,  and  other  nations  justly  admire  it.  But 
the  Petition  of  Right  is  directed  against  a  few  very  defi- 
nite and  well  understood  abuses.  It  was  drawn  up  at  a 
time  when  government  had  become  more  precise.  The 
new  statute  forbade  the  King  to  continue  the  collection 
of  certain  taxes  which,  as  the  parliamentary  party  main- 
tained, did  not  belong  to  him  by  royal  prerogative.  It 
forbade  the  King  to  keep  in  prison  subjects  who  had  not 
been  convicted  of  any  crime ;  or  to  billet  soldiers  in  the 
houses  of  citizens ;  or  to  subject  citizens  to  trial  in  courts 
of  martial  law.  The  act  also  required  the  King  to  govern 
according  to  law.  For  Charles  to  observe  the  provisions 
of  this  act  would  have  been  to  vacate  the  office  of  King 
as  understood  by  him.  This  he  had  not  the  slightest  in- 
tention of  doing.  He  promptly  imprisoned  the  leaders 
of  the  House  of  Commons  who  had  forced  him  to  grant 
the  Petition  of  Right,  and,  in  utter  violation  of  the  new 
statute,  ruled  eleven  years  without  calling  a  Parliament. 


CHAPTER  XXIV 

RELIGIOUS   CONTROVERSY 

n~^HE  course  of  action  followed  by  Charles  I.,  after  the 
-L  granting  of  the  statute  known  as  the  Petition  of 
Right,  was  more  than  ever  in  flagrant  violation  of  law 
and  more  and  more  obnoxious  to  the  law-abiding  spirit  of 
the  people.  It  cannot  be  doubted  that  from  this  source 
alone,  had  time  been  given  to  exhaust  the  long  patience 
of  the  slow-moving  masses,  would  have  come  the  convul- 
sion which  did  in  fact  arise  primarily  from  other  causes. 
More  thoroughly  fixed  in  the  hearts  of  the  people  than 
even  their  reverence  for  law  was  now  the  principle  of 
religious  freedom.  "  England  had  become  the  land  of  a 
Book,"  and  the  great  constitutional  debate  was  in  its 
origin  a  religious  controversy.  In  Scotland,  the  Kirk, 
claiming  divine  right  to  exercise  authority  over  all  men, 
not  excepting  the  sovereign,  had  been  met  by  a  king 
claiming  divine  right  to  exercise  absolute  authority  at 
the  same  time  and  place.  Both  King  and  Kirk  had  sub- 
stituted their  own  peculiar  views  of  the  Bible  for  the 
Pope.  Each  found  in  the  Bible  the  expression  of  the 
divine  will  which  all  men  are  bound  to  obey.  During 
Charles  I.'s  reign,  between  1629  and  1640,  through  a 
splendid  English  translation  of  the  Bible,  all  England 
was  becoming  familiar  with  its  teachings. 

It  had  been  common  at  all  times  in  English  history  for 
the  bishops  to  hold  one  view  in  political  contentions  and 

274 


CHAP.  XXIV  RELIGIOUS   CONTROVERSY  275 

a  portion  of  the  lower  clergy  to  hold  another  view.  The 
Church  as  a  political  institution  seldom  acted  as  a  unit 
in  politics;  and  there  have  been  many  times  when  the 
influence  of  the  Church  as  a  political  institution  was 
favourable  to  one  political  faction  in  the  government, 
while  the  influence  of  the  prevailing  religious  teachings 
of  the  Church  was  favourable  to  an  opposing  faction. 

When  James  I.  came  to  England,  the  national  preju- 
dices were  intensely  anti-papal ;  yet  there  were  influential 
classes  who  did  not  share  this  national  prejudice.  Be- 
tween the  Papist  and  the  fanatic  whose  religion  consisted 
largely  in  the  detestation  of  popery  were  in  England  all 
grades  of  opinion,  yet  there  were  strong  tendencies  to 
divide  into  two  parties,  the  radical  and  the  conservative, 
the  Puritan  and  the  legal  Churchman.  The  Episcopalian 
Church  was  that  by  law  established,  and  nearly  all  the 
people  were  accounted  members  except  the  Papists  and  a 
few  of  the  extreme  Protestants  who  entirely  repudiated 
the  authority  of  the  Establishment.  Elizabeth's  policy 
had  been  one  of  resistance  to  extremes,  and  James  found 
within  the  Established  Church  a  moderate  party  which 
had  been  trained  under  Elizabeth  to  restrain  the  more 
radical  of  the  clergy.  The  independent  party  in  the 
House  of  Commons  was  largely  composed  of  those  in 
sympathy  with  the  Puritan,  or  the  extreme  anti -papal, 
party  in  the  Church.  These  Puritans  were  refractory  in 
matters  of  Church  discipline,  as  well  as  in  matters  of  par- 
liamentary action.  While  remaining  in  the  Church  they 
still  refused  to  conform  to  some  of  its  requirements,  and 
were  therefore  disliked  by  the  bishops.  Among  the  higher 
clergy  were  a  few  moderate  men  who  favoured  a  concilia- 
tory course  in  order  to  stay  the  tendency  to  schism. 
Scotland  was  nearly  all  Presbyterian  in  religious  belief, 
and  while  Presbyterianism  was  conquering  Scotland,  it 
spread  also  into  England,  so  that  in  the  time  of  Elizabeth 


276       GROWTH   OF  THE   ENGLISH   CONSTITUTION    chap,  xxiv 

the  Puritan  party  in  the  Church  was  mainly  composed 
of  those  who  favoured  a  Presbyterian  policy  and  held 
the  Presbyterian  theory  of  Church  government.  These 
early  Presbyterians  had,  however,  no  intention  of  being  a 
sect.  In  their  view  the  kingdom  of  God  on  earth  was 
simple.  It  included  under  one  form  of  government  all 
men  ;  and  that  form  of  government  was  the  Presbyterian 
Church.  The  early  English  Presbyterians,  with  Cart- 
wright  as  their  leader,  proposed  to  have  all  Englishmen 
submit  to  the  rule  of  the  one  divinely  ordained  Church.^ 
This  movement  was  at  its  height  about  1572.  The  Pres- 
byterians, though  all-powerful  in  Scotland,  in  England 
encountered  much  resistance  and  were  forced  to  face  the 
disagreeable  alternative  of  remaining  in  the  Established 
Church  or  becoming  a  sect.  Most  of  the  Puritans,  or 
Presbyterians,  chose  to  remain,  but  they  were  of  that 
part  of  the  Church  which  was  constantly  clamouring  for 
more  radical  changes  and  more  strenuous  opposition  to 
popery.  Upon  the  accession  of  James,  therefore,  there 
was  a  strong  party  within  the  Established  Church  of 
England  which  desired  the  modification  of  the  Episcopal 
forms  in  the  direction  of  Presbyterianism. 

The  year  after  James  was  crowned  King  of  England, 
the  reforming  party  in  the  Church  arranged  a  conference 
with  the  King,  the  object  of  which  was  to  secure  con- 
cessions to  the  Puritan  party.  A  petition  was  presented, 
asking  permission  for  those  whose  consciences  approved, 
to  omit  the  wearing  of  the  surplice,  etc.  There  were 
present  at  the  conference  those  who  favoured  such  a 
modification  of  the  Church  discipline  as  would  make  it 
easy  for  the  Presbyterians  to  remain  in  the  Church.  At 
this  meeting  James  made  the  statement,  already  quoted, 
that  the  Presbyterian  Church  could  not  be  reconciled  with 
monarchy.  He  threw  the  whole  weight  of  his  authority 
^Hallam,  Constitutional  History^  Vol.  I.,  p.  189, 


CHAP.  XXIV  RELIGIOUS  CONTROVERSY  277 

in  favour  of  the  extreme  conservatives  among  the  bishops, 
who  were  for  enacting  the  most  rigid  conformity.  James 
and  the  bishops  were  at  one,  and  the  Puritans  thought 
themselves  driven  to  look  more  and  more  to  Parliament 
as  the  bulwark  of  the  nation  against  vice  and  against 
popery. 

The  men  still  lived  who  had  been  alarmed  by  the  Invin- 
cible Armada.  They  looked  upon  Spain  as  the  enemy 
of  religion  and  the  special  enemy  of  England.  A  war 
against  Spain  would  at  any  time  be  popular.  James  con- 
stantly offended  both  the  religious  and  the  patriotic  sense 
of  the  nation  by  his  friendship  for  Spain.  He  failed  to 
secure  the  marriage  of  his  son  and  the  Infanta,  yet  his 
known  efforts  to  that  end  aroused  an  intense  antipathy 
towards  him.  Hence  the  parliamentary  party,  in  all  their 
contests  with  the  King  respecting  the  privileges  of  their 
members,  in  all  their  impeachment  trials,  in  their  cham- 
pionship of  the  cause  of  resistance  to  arbitrary  taxation, 
enjoyed  a  constant  and  increasing  support  from  the  Puri- 
tans ;  and  there  was  a  strong  tendency  for  these  senti- 
ments to  become  general.  Charles  at  length  married  the 
daughter  of  the  King  of  France,  and  as  one  condition  to 
this  marriage  both  James  and  Charles  promised  to  secure 
the  toleration  of  Romanists,  although  they  had  previously 
given  solemn  pledges  that  this  should  not  be  done.  With 
the  masses  of  the  people  the  religious  policy  of  these  kings 
had  more  telling  effect  in  favour  of  the  Parliament  and  the 
parliamentary  theory  of  government  than  all  other  issues. 

There  is  much  in  the  teachings  of  the  Bible  which  tends 
directly  to  promote  freedom  of  speech  and  independence 
of  thought  and  action  in  the  face  of  authority.  A  prophet 
of  the  Lord  made  the  wicked  Ahab  to  tremble  on  his 
throne,  and  yet  the  same  prophet  was  exiled  by  orders 
from  a  corrupt  court.  When  the  champions  of  the  par- 
liamentary party  were  imprisoned  and  mutilated,  they 


278       GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xxiv 

appeared  to  their  Puritan  supporters  as  martyrs  to  a 
purer  religion.  John  the  Baptist  told  King  Herod  that 
he  ought  not  to  have  his  brother  Philip's  wife.  A  little 
later  the  head  of  John  was  presented  to  the  offended 
woman.  Mr.  Prynne  wrote  a  book  against  the  vices  of 
the  day,  in  which  all  classes,  not  excepting  the  King  and 
Queen,  were  reproved  for  what  the  ultra-Puritans  con- 
sidered their  evil  ways.  For  this  Mr.  Prynne  had  his 
ears  cut  off  so  close  to  his  skull  as  to  endanger  his 
life.  It  is  a  rule  of  life  revealed  in  the  Bible  that  right- 
eous men  have  ever  been  accounted  worthy  to  suffer  at 
the  hands  of  the  rulers  in  a  wicked  generation.  In  the 
eyes  of  Bible-reading  Puritans,  Charles  and  his  associates 
were  ungodly  men  who  devised  evil  against  the  nation. 

Charles  was  too  correct  a  man  in  his  personal  life  to 
make  it  easy  for  the  Puritans  to  convince  the  nation  of 
his  personal  unrighteousness.  His  sins  were  political  and 
ecclesiastical.  Prynne  had  written  against  sports  and 
theatrical  performances,  and  about  the  time  of  the  pub- 
lication of  his  book  the  Queen  took  part  in  a  theatrical 
exhibition.  The  more  intelligent  leaders  of  the  parlia- 
mentary party  repudiated  the  teachings  of  Prynne;  yet 
to  the  masses  of  the  Puritans  he  was  a  martyr  for  the 
cause  of  righteousness.  The  Queen,  moreover,  was  known 
to  be  a  Papist,  and  it  was  not  easy  to  convince  a  Puritan 
of  that  period  that  any  practice  was  right  which  a  Papist 
approved. 

Archbishop  Laud  was  Charles's  powerful  supporter  in 
the  Church.  There  was  a  saying  common  in  the  time  of 
the  Normans  that  the  Archbishop  and  the  King  were  the 
two  oxen  to  draw  the  English  plough.  This  saying  seemed 
to  be  perfectly  exemplified  in  Charles  and  Laud  during  the 
eleven  years  of  tyranny.  The  one  had  centred  in  him- 
self all  effective  civil  government,  and  the  other  had  all 
effective  ecclesiastical  power,  while  the  two  were  one  ia 


CHAP.  XXIV  RELIGIOUS  CONTROVERSY-  279 

spirit  and  purpose.  By  means  of  the  bishops  and  the 
High  Commission  Court,  innovations  were  effected  in 
the  Church  which  convinced  the  Puritans  that  Popery- 
was  being  reestablished.  Communion  tables  were  placed 
at  the  east  end  of  the  chancel,  and  bowing  at  the  name  of 
Jesus  was  introduced.  Strict  conformity  was  required. 
For  departures  from  the  forms  of  the  Established  Church 
clergymen  were  fined,  imprisoned,  and  otherwise  punished. 
In  matters  ecclesiastical  and  religious,  Charles's  govern- 
ment was  without  a  flaw  either  as  to  legislative,  execu- 
tive, or  judicial  power.  He  had  all  the  agencies  which  a 
government  could  wish. 

One  flaw,  however,  is  seen  in  secular  government  in  the 
lack  of  a  harmonious  Parliament.  But  Charles  enjoyed 
the  services  of  a  minister  who  for  a  time  promised  to  sup- 
ply this  deficiency.  Among  the  boldest  members  of  the 
opposition  in  the  time  of  Elizabeth  were  Paul  and  Peter 
Wentworth.  To  the  same  school,  under  James  and  Charles, 
belonged  Thomas  Wentworth.  Until  about  the  time  of 
the  granting  of  the  Petition  of  Right  Wentworth  was  a 
staunch  member  of  the  parliamentary  party.  A  little 
later  he  became  the  King's  chief  supporter.  He  believed 
that  the  King's  government  could  be  made  complete  by 
restoring  to  his  use  the  ancient  subservient  Parliament. 
To  this  policy  he  gave  the  name  "thorough."  The  North 
of  England  was  Wentworth's  first  field  of  operation ; 
there  he  proved  that  out  of  a  Council  of  the  North  an 
efficient  and  at  the  same  time  a  subservient  governing 
body  could  be  formed.  Going  thence  to  Ireland,  he 
proved  that  a  most  absolute  government  could  be  formed 
by  means  of  an  obedient  Irish  Parliament.  With  such  a 
Parliament  restored  to  England,  nothing  would  be  lack- 
ing to  the  formation  of  a  permanent  and  harmonious 
absolute  government. 

If  Charles  I.  could  have  added  to  his  absolute  govern- 


^80       GROWTH  OF  THE  JJJJGLISH  CONSTITUTION    chap,  xxiv 

ment  in  the  North  of  England  and  in  Ireland  a  similar 
government  for  Scotland,  the  English  Puritans  would 
have  had  a  much  more  serious  contest  than  they  actually 
had.  The  King  did,  in  fact,  appear  to  have  such  a  gov- 
ernment in  Scotland.  When  his  father  became  King  of 
England  he  was  making  progress  in  his  policy  of  subdu- 
ing the  Presbyterian  Church  and  building  up  Episcopacy. 
But  this  was  a  gradual  process  extending  throughout  the 
whole  of  his  reign.  He  used  the  subservient  Scottish 
Parliaments  to  transfer  power  slowly  from  the  Presbytery 
to  Parliament  and  bishops.  James's  policy  was  fairly 
successful ;  his  Parliaments  were  submissive,  the  Crown 
was  strengthened,  and  the  religious  sense  of  the  nation 
was  not  greatly  offended.  The  most  unpopular  act  of  his 
reign  was  that  known  as  The  Five  Articles  of  Perth,  which 
required  kneeling  at  the  communion,  the  observance  of  holy 
days,  and  other  practices  which  suggested  the  return  of 
Popery.  James  was  at  that  date,  1621,  seeking  a  popish 
alliance  with  Spain.  During  these  changes  the  forms  of 
worship  established  by  Knox  were  for  the  most  part  left 
intact,  and  the  property  of  the  nobles  was  undisturbed, 
the  estates  being  left  as  they  had  been  settled  at  the  time 
of  the  Reformation. 

When  Charles  became  king,  in  1625,  all  was  changed. 
He  proposed  to  resume  for  himself  possession  of  estates 
which  had  been  granted  by  the  Crown  forty  years  before. 
The  Scottish  government  seemed  to  be  such  as  suited 
Charles  well.  The  legislature,  such  as  it  was,  could  be  got 
to  vote  whatever  the  King  wished,  and  there  was  a  council 
of  State,  called  the  Lords  of  the  Articles,  made  up  of  his 
own  supporters,  which  could  either  legislate  or  control 
legislation.  He  seemed  to  have  not  the  slightest  percep- 
tion of  the  reserved  power  that  inhered  in  the  Scottish 
people  and  Presbyterian  Church.  But  in  1637,  when 
Charles  and  Archbishop  Laud  proposed  to  substitute  the 


CHAP.  XXIV  EELIGIOUS  CONTROVERSY  281 

English  Prayer  Book  in  place  of  the  liturgy  of  John 
Knox,  the  nation  rose  in  rebellion. 

It  should  be  noticed  that  this  rising  in  Scotland  oc- 
curred just  when  the  English  people  also  were  being 
goaded  to  the  point  of  resistance.  Under  the  name  of 
ship-money,  Charles  and  his  lawyers  had  developed  a 
scheme  which  would  enable  their  government  to  prolong 
its  existence  for  an  indefinite  period  without  the  aid  of 
Parliament.  Out  of  an  ancient  and  long  disused  preroga- 
tive permitting  the  King  to  call  upon  towns  to  furnish 
ships  to  ward  off  danger,  was  developed  the  theory  that 
the  King  could  levy  a  tax  upon  the  entire  country,  and 
that  the  King  himself  should  be  the  judge  of  the  emer- 
gency requiring  such  a  tax.  John  Hampden  refused  to 
pay  the  tax,  and  succeeded  in  obtaining  a  decision  in  the 
courts  upon  the  legality  of  the  act.  It  was  through  en- 
couragement from  the  judges  that  Charles  had  entered 
upon  the  policy,  and  a  majority  of  the  court  sustained  the 
prerogative  of  the  King  in  the  trial  of  Hampden ;  but  in 
rendering  the  judgment  the  judges  of  the  Court  of  the 
Exchequer  stood  seven  to  five  in  support  of  the  govern- 
ment. The  practical  effect  of  the  judgment  was  the  de- 
feat of  the  King.  The  persistent  collection  of  what  they 
regarded  as  illegal  taxes  seemed  to  the  people  a  fresh  in- 
stance of  law-breaking  by  the  Sovereign  and  his  courts. 

From  1637  to  1640  Charles's  government  was  in  des- 
perate straits.  His  despotism  was  completely  broken  in 
Scotland.  He  was  forced  to  concede  to  that  country  a 
representative  government,  and  along  with  the  represent- 
ative government  came  perforce  the  restoration  of  the 
Presbyterian  Church.  Still  there  was  not  peace  between 
the  King  and  the  Scots.  The  restored  Scottish  Parlia- 
ment made  demands  which  the  King  could  not,  or  would 
not,  grant.  So  there  was  war  in  Scotland.  The  King's 
government  in  England  was  powerless  without  the  means 


282       GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xxiv 

of  raising  money,  and  Charles  was  forced  to  call  a  Parlia- 
ment, which  he  did  in  1640.  In  view  of  what  happened 
a  few  years  later  it  is  a  matter  of  amazement  that  so 
moderate  and  conservative  a  Parliament  could  come  to- 
gether to  face  a  king  who  had  for  eleven  years  carried 
on  an  arbitrary  and  illegal  government.  Yet  even  with 
this  mild-tempered  Parliament  Charles  quarrelled,  and 
sent  its  members  home  in  anger  at  the  end  of  three 
weeks.  Later  in  the  same  year  he  was  forced  to  call  a 
new  Parliament.  On  the  faces  of  the  members  of  this 
Parliament  eye-witnesses  testified  that  one  could  read  the 
determination  not  to  be  commanded,  but  to  command. 


CHAPTER  XXV 

TOLERATION  AND   DEMOCRACY 

rriHE  most  important  facts  to  be  observed  in  the  attempt 
-*-  to  account  for  the  modern  English  Constitution  are 
not  those  pertaining  to  King,  Parliaments,  and  courts, 
but  rather  those  which  pertain  to  the  spirit  and  the  acts 
of  the  common  people.  From  the  beginning  kings  had 
prospered  or  failed  according  as  they  gained  or  lost  the 
support  of  the  people.  Under  the  rule  of  the  common  law 
the  common  people  became  law-abiding,  centuries  before 
lawlessness  was  suppressed  among  the  ruling  classes,  and 
it  was  by  gaining  their  support  that  the  Tudor  kings  were 
enabled  to  induce  respect  for  law  among  the  ruling 
classes.  Through  the  jury  system,  through  local  gov- 
ernment, through  the  militia,  through  guilds,  labour 
organizations,  brotherhoods,  and  various  other  societies, 
religious  and  social,  a  large  proportion  of  the  people  had 
gained  experience  in  matters  of  government. 

In  the  few  popular  uprisings  which  occurred  in  the  time 
of  the  Reformation  during  the  later  years  of  Henry  VIII. 
and  Edward  VI.  it  was  observed  that  the  common  people 
exercised  great  self-restraint.  A  popular  uprising  did  not 
take  the  form  of  a  brainless  mob.  There  was  discipline 
and  self-restraint  pervading  the  mass.  In  all  the  striv- 
ings of  the  masses  religious  teachings  and  practices  held 
a  dominant  place.  The  monks  and  the  friars  brought  hope 
and   courage  to  the  most  hopeless,  during  the   Middle 

283 


284        GROWTH  OF  THE   ENGLISH  CONSTITUTION    chap,  xxv 

Ages.  Wiclif  and  the  Lollards  created  a  demand  on  the 
part  of  the  people  for  greater  purity  among  their  rulers, 
and  thus  helped  to  prepare  the  way  for  the  Reformation. 
The  risings  at  the  time  of  the  Reformation  occurred  in 
part  because  the  people  were  made  to  believe  that  reli- 
gious institutions  were  all  in  danger  of  being  destroyed. 
When  religious  opinion  was  injected  into  English  politics 
there  was  already  a  profound  and  general  interest  in  the 
subject.  The  beginning  of  the  Civil  War  had  been  pre- 
ceded by  more  than  a  hundred  years  of  Bible-reading  in 
the  English  tongue,  and  the  great  body  of  the  people 
had  formed  habits  of  thinking  and  reasoning  on  religious 
questions. 

We  have  seen  that  the  modern  English  Constitution  is 
based  upon  the  theory  of  democracy.  The  origin  of  this 
theory  must  ever  be  a  matter  of  much  interest.  Since  we 
have  had  inflicted  upon  us  the  theories  of  the  political 
philosophers  of  the  seventeenth  and  eighteenth  centuries 
regarding  the  nature  and  origin  of  government,  we  incur 
great  difficulty  in  reading  aright  our  previous  history. 
From  the  days  of  our  youth  our  minds  are  filled  with 
various  ideals  towards  the  attainment  of  which  govern- 
mental agencies  are  being  directed.  The  natural  order 
seems  to  be,  first  the  ideal  and  then  the  striving  for  its 
attainment.  We  are  probably  correct  in  assuming  that 
there  has  been  something  of  this  element  in  all  human 
effort.  That  is,  human  beings  in  every  state  and  con- 
dition have  striven  after  some  sort  of  ideal.  But  the 
peculiarity  of  our  position  arises  from  the  fact  that  before 
we  are  called  upon  for  responsible  action  our  minds  are 
filled  with  multitudes  of  unattained  ideals.  Democracy 
stands  for  an  unattained  ideal.  We  know  that  such  a 
government  as  a  true  democracy  has  never  existed,  yet  we 
hold  that  there  has  been  progress  towards  the  attainment, 
which  we   hope  and  expect  will  sometime   be   reached. 


CHAP.  XXV  TOLERATION  AND   DEMOCRACY  285 

Another  unattained  ideal  is  that  of  religious  toleration  : 
there  is  progress  towards  its  attainment,  but  it  is  not 
yet  attained.  Up  to  the  time  of  the  Civil  War  England 
had  not  been  much  affected  by  the  writings  of  political 
theorizers. 

Mr.  Freeman  has  in  mind  the  difficulty  of  reading  cor- 
rectly our  early  history  when  he  says  that  the  ancient  Witan 
was  in  one  sense  more  democratic  than  would  accord  with 
the  dreams  of  the  wildest  liberal,  while  in  another  sense  it 
was  more  oligarchic  than  the  extreme  conservative  would 
wish.  We  have  seen  that  the  guilds  and  other  societies 
had  in  their  origin  what  we  would  call  a  democratic  form, 
yet  in  all  cases  they  tended  to  lose  that  form.  The  ideals 
that  filled  the  minds  of  the  people  of  the  Middle  Ages 
were  such  as  were  in  accord  with  the  division  of  men  into 
various  ranks  and  estates.  It  was  the  business  of  the  few 
to  govern  ;  it  was  the  province  of  the  many  to  be  governed. 
All  striving  was  for  the  attainment  of  the  special  privi- 
leges of  a  class.  We  ought  to  be  able  to  see  clearly  that 
it  is  a  misuse  of  terms  to  apply  the  word  "democracy  "  with 
its  modern  signification  to  any  organization  of  the  Middle 
Ages.  With  us  the  term  stands  for  an  ideal,  a  theory  of 
government.  An  unconscious  democracy  is  an  absurdity 
inconsistent  with  our  use  of  the  term.  Yet  all  through 
the  Middle  Ages  various  bodies  of  men  were  induced  to 
act  like  democrats  ;  they  were  induced  to  join  hands  and 
share  a  common  lot ;  they  gained  experiences  which  tended 
to  develop  the  democratic  theory.  After  the  democratic 
theory  had  been  developed  it  gained  much  support  from 
that  which  had  only  the  appearance  of  democracy  in  the 
earlier  society. 

A  similar  course  of  reasoning  applies  to  religious  toler- 
ation. When  there  was  but  one  Church  in  Western 
Europe  there  was  much  that  had  the  appearance  of  tol- 
eration.    There  was  certainly  a  wide  range  of  conflicting 


286         GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xxv 

doctrines,  teachings,  and  practices.  The  Pope  looked 
upon  Luther's  teachings  at  first  as  not  at  all  peculiar ;  the 
monks  were  accustomed  to  use  great  liberty  in  debate. 
In  England  there  was  always  a  good  deal  of  variety  in 
religious  teachings  and  practices.  The  suppression  of 
Lollardy  was  for  political  and  social  rather  than  for  reli- 
gious reasons.  But  all  the  toleration,  all  the  liberty  of 
thought  and  discussion,  which  preceded  the  Reformation 
existed  without  any  distinct  and  well-defined  theory  on 
the  subject,  while  to  the  modern  mind,  if  the  theory  of 
toleration  is  left  out,  the  distinctive  meaning  of  the  term 
is  wanting. 

Both  democracy  and  religious  toleration  became  for  the 
first  time  recognized  and  important  factors  in  English 
history  during  the  Civil  War.  They  both  grew  out  of  a 
hundred  years  of  Bible  reading  and  attempts  to  apply 
Bible  teachings  to  human  government.  The  Presbyterian 
covenant  united  the  people  of  Scotland  into  a  formidable 
nation;  and  it  was  the  Presbyterians  of  Scotland  who  first 
broke  the  tyranny  of  Laud  and  Charles.  The  Presbyte- 
rians in  England  were,  naturally  enough,  ready  to  unite 
England  and  Scotland  under  one  faith  and  one  Church 
government.  Hence,  when  war  between  the  Parliament 
and  the  King  arose,  the  Presbyterian  party  gained  control 
of  the  former.  The  covenant  was  adopted  by  Parlia- 
ment, was  accepted  by  the  army,  and  very  generally 
signed  by  the  Puritan  party  throughout  England.  But 
the  covenant  in  England  could  have  no  such  uniting 
effect  as  it  had  had  in  Scotland  in  the  previous  century. 
Many  English  Puritans  preferred  a  reformed  Episcopacy  to 
the  Presbytery,  while  the  most  aggressive  of  the  Puri- 
tans favoured  neither.  Ever  since  the  time  of  Elizabeth 
there  had  been  Bible-reading  Englishmen  who  held  to  the 
view  that  each  body  of  believers  in  the  place  where  they 
happened  to  live,  by  uniting  themselves  together  for  reli- 


CHAP.  XXV  TOLERATION  AND   DEMOCRACY  287 

gious  purposes,  constituted  a  true  Church  with  full  powers 
of  discipline.  The  Puritans  in  America  had  adopted  this 
form  of  Church  government.  At  the  meeting  of  the  Long 
Parliament  many  American  Puritans  returned  to  England. 
Their  views  of  Church  and  government  were  rapidly  in- 
creasing in  England,  and  they  were  the  most  enthusiastic 
of  the  parliamentary  party. 

Oliver  Cromwell,  himself  an  Independent,  determined 
to  make  use  of  the  enthusiasm  of  the  extreme  Puritans 
to  break  the  force  of  the  Cavaliers.  It  was  among  the 
praying  soldiers  of  Cromwell's  army  that  the  ideas  of 
religious  toleration,  which  had  before  been  expressed  by 
a  few  individuals  and  held  by  a  few  feeble  sects,  became 
a  permanent  and  important  force.  At  the  hands  of  the 
"  honest  men "  in  Cromwell's  army  the  English  people 
enjoyed  religious  toleration  for  the  space- of  fifteen  years. 
Since  that  time  government  has  with  great  difficulty  suc- 
ceeded in  enforcing  religious  opinions  or  religious  observ- 
ances. Toleration  became  a  religious  conviction,  and  ever 
after  had  a  marked  effect  upon  science  and  learning  as 
well  as  upon  politics  and  religion.  At  the  birth  of 
toleration  the  Presbyterians  were  labouring  to  bring  all 
England  and  Scotland  under  one  system  of  faith  and 
Church  discipline;  but  after  the  army  of  toleration  was 
disbanded  the  Presbyterians  in  England  were  themselves 
forced  to  become  a  sect  and  to  join  the  ranks  of  the 
tolerationists.  Since  the  long  rule  of  the  army  of  honest 
men  and  tender  consciences  the  word  "  toleration "  has 
had  a  new  meaning.  It  has  become  a  distinct  religious 
dogma. 

The  origin  of  democracy  was  scarcely  less  distinctly  re- 
ligious. ^  In  Scotland  the  great  body  of  the  people  entered 
into  covenant  with  themselves  and  with  their  God  that 

1  For  an  excellent  treatment  of  this  subject  see  Borgeaud,  The  Bise  of 
Modern  Democracy^  translated  by  Mrs.  Birkbeck  Hill. 


288         GROWTH   OF  THE   ENGLISH   CONSTITUTION    chap,  xxv 

they  would  maintain  and  defend  their  faith  and  Church 
discipline  against  all  powers.  Thus  united  they  made 
themselves  invincible.  In  the  beginning  there  was  among 
them  no  distinct  theory  of  democracy  in  government. 
Yet  this  constant  and  effective  appeal  to  the  body  of  the 
faithful  believers  to  maintain  the  Church  and  State  tended 
in  itself  to  develop  a  theory  of  government.  In  the 
Presbyterian  system,  however,  the  centre  of  interest  was 
not  in  the  congregation  of  believers,  but  in  the  general 
assembly  or  the  smaller  representative  bodies.  In  the 
absence  of  an  already  developed  democratic  theory  the 
Presbyterian  Church  tended  to  an  aristocratic  form  of 
government.  In  Scotland,  however,  it  was  not  left  to 
itself :  being  constantly  threatened,  there  were  frequent 
appeals  to  the  congregation  of  believers. 

It  was,  however,  among  that  class  of  Bible  readers  who 
found  in  each  body  of  believers  the  divinely  ordained 
Church  that  the  distinctive  democratic  theory  of  govern- 
ment was  first  formed.  With  these  the  congregation  of 
adult  believers  had,  by  divine  appointment,  in  themselves 
all  ecclesiastical  power.  These  were  the  Baptists  and  In- 
dependents, who  appeared  in  England  during  the  previous 
century,  but  for  the  most  part  had  been  kept  out  of  the 
country  by  persecution.  They  lived,  some  of  them,  in 
Holland  ;  but  the  largest  body  were  in  New  England. 
Some  of  these  drew  a  sharp  line  of  distinction  between 
the  spiritual  and  the  secular  government.  With  these 
it  was  in  matters  spiritual  only  that  all  power  rested 
with  the  congregation  of  believers.  But  whatever  the 
scope  of  this  power,  the  congregation  was  in  its  nature  a 
pure  democracy  —  a  democracy  read  directly  out  of  the 
Bible.  It  may  be  that  this  peculiar  reading  of  the  Bible 
is  due  in  part  to  ancient  habits  of  local  government 
among  the  English  ;  or  it  may  be  due  to  the  custom 
prevalent   in   the   Middle  Ages   of   forming   societies  of 


CHAP.  XXV  TOLERATION  AND   DEMOCRACY  289 

equals  for  various  purposes.  The  fact  that  seems  well 
established  is  that  modern  democracy  as  a  vital  principle 
came  into  conscious  existence  in  these  sects. 

The  forty  years  of  debating  between  the  leaders  in  the 
House  of  Commons  and  the  supporters  of  the  Crown  had 
something  to  do  with  the  preparation  of  the  ground  for 
the  democratic  seed.  The  leaders  of  the  Commons  mani- 
fested no  special  democratic  tendencies,  yet  the  exigencies 
of  debate  required  frequent  appeal  to  something  which 
they  were  pleased  to  call  the  nation,  or  the  people.  These 
phrases  had  meant  nothing  in  particular,  but  in  the  tug  of 
civil  war  there  were  at  hand  Baptists  and  Independents 
who  were  ready  to  give  them  a  precise  and  important 
meaning.  They  taught  that  monarchy  was  a  sin.  It 
was  only  when  Israel  had  fallen  into  sin  that  they  asked 
for  a  king.  These  religious  enthusiasts,  as  we  have  seen, 
controlled  the  army.  They  believed  that  it  was  their 
duty  to  punish  the  King  for  his  crimes.  It  was  their 
intention  to  abolish  forever  the  monarchy  and  the  House 
of  Lords  and  establish  a  republic.  In  response  to  this 
demand  the  King  was  executed  in  an  orderly  way. 
While  the  act  was  at  the  time  generally  disapproved,  yet 
the  entire  English  nation  acquiesced. 

Charles  represented  a  theory  of  monarchy  which  the  par- 
liamentary party  could  not  logically  answer.  The  Puritan 
democrats  who  had  gained  control  of  the  army  gave  a 
logical  and  satisfactory  answer.  It  was  that  if  kings 
violated  the  laws  they  were  to  be  punished  as  other  men. 
Among  the  last  words  of  Charles  was  a  declaration  that 
he  desired  the  liberties  of  his  people,  but  that  this  con- 
sisted in  having  a  government.  "It  is  having  share  in 
government.  Sirs ;  this  is  nothing  pertaining  to  them. 
A  subject  and  a  sovereign  are  clean  different  things." 
Charles  was  no  doubt  honest  and  sincere  in  his  con- 
victions.    The   Puritans  who  controlled  the  army  were 


290        GROWTH  OF  THE   ENGLISH  CONSTITUTION    chap,  xxv 

equally  sincere  in  the  conviction  that  the  time  had  come 
to  enforce  the  lesson  that  kings  as  well  as  people  were 
subject  to  the  laws. 

It  was  the  democratic  element  in  the  army  and  in  the 
country  which  furnished  the  aggressive  force  which  led  to 
the  execution  of  the  King.  This  force,  however,  did  not 
grow ;  there  was  reaction.  Cromwell  himself  was  not  a 
democrat,  but  he  was  a  sincere  and  consistent  tolerationist. 
The  important  thing  to  be  observed  is,  that  after  the  death 
of  the  King  there  always  existed,  in  the  minds  of  some 
men,  a  clearly  defined  theory  of  democracy ;  and  when- 
ever one  was  disposed  to  revive  that  theory  of  monarchy 
for  which  Charles  died,  there  ensued  a  tendency  to  revive 
the  view  of  government  which  led  to  his  death. 


CHAPTER  XXVI 

THE  REBELLION  AND  THE   COMMONWEALTH 

THE  Long  Parliament  proceeded,  according  to  the 
time-honoured  parliamentary  habit,  to  ask  for  a  re- 
dress of  grievances  before  the  consideration  of  supplies. 
Their  grievances  were  not  a  few.  Laud,  and  Wentworth 
(now  Earl  of  Strafford),  and  other  officers  of  the  Crown 
were  accused  by  vote  of  the  Commons,  and  thrown  into 
prison.  Strafford  was  attainted  of  high  treason,  and  the 
King,  notwithstanding  he  had  promised  that  not  a  hair 
of  his  head  should  be  touched,  consented  to  his  execu- 
tion. He  also  gave  approval  to  a  bill  that  the  Parlia- 
ment should  not  be  dissolved  except  by  its  own  consent. 
He  farther  gave  his  consent  to  acts  abolishing  the  Star 
Chamber  Court  and  all  other  arbitrary  courts  which  had 
been  used  by  Tudor  and  Stuart  kings.  He  assented  also 
to  laws  making  it  illegal  for  the  King  to  collect  any  man- 
ner of  revenue  except  by  consent  of  Parliament. 

It  will  be  observed  that  these  measures  went  much  far- 
ther than  the  Petition  of  Right.  They  assailed  the  King's 
arbitrary  power  as  entrenched  in  the  courts,  and,  by  con- 
trolling supplies,  they  struck  at  arbitrary  power  in  all 
administrative  officers.  With  the  condign  punishment  of 
their  worst  enemies,  and  with  the  attainment  of  so  large 
an  amount  of  reformatory  legislation,  a  portion  of  the  par- 
liamentary party  began  to  feel  that  all  had  been  attained 

291 


292       GROWTH  OF  THE   ENGLISH  CONSTITUTION    chap,  xxvi 

that  should  be  demanded.  A  bill  known  as  the  "  Grand 
Remonstrance"  demanded,  among  other  things,  that  ec- 
clesiastical policy  should  be  controlled  by  Parliament. 
After  an  earnest  debate,  the  measure  was  carried  by  a 
majority  of  eleven,  but  so  earnest  was  the  minority  that 
they  insisted  upon  the  unheard-of  plan  of  publishing  a 
protest  along  with  the  Grand  Remonstrance.  A  portion 
of  those  who  opposed  the  remonstrance  ever  after  acted 
with  the  King's  party.  The  King,  elated  at  the  thought 
of  having  so  strong  a  following  in  the  House  of  Com- 
mons, went  to  such  extremes  as  made  it  difficult  for  his 
followers  to  remain  faithful.  The  Queen  was  striving  to 
have  an  army  from  the  north  brought  to  London  to  over- 
awe the  Parliament.  She  had  also  written  asking  the 
Pope  to  come  to  their  help  with  an  army.  The  King  was 
suspected  of  preparing  an  army  of  invasion  in  Ireland ; 
and,  to  crown  all,  he  ordered  his  attorney  general  to 
impeach  of  high  treason  the  five  most  conspicuous  leaders 
of  the  House  of  Commons,  taking,  moreover,  the  fool- 
hardy course  of  going  to  the  House  in  person  with  a 
company  of  soldiers  to  arrest  the  five  members.  Such 
acts  diminished  the  number  of  the  King's  followers  and 
greatly  inflamed  the  minds  of  his  enemies. 

This  attempt  to  arrest  the  popular  leaders  led  immedi- 
ately to  civil  war.  Nearly  two  hundred  years  had  passed 
since  the  Wars  of  the  Roses,  and  civil  war,  always  an 
awkward  business,  is  especially  so  after  having  been  de- 
layed for  so  long  a  time  through  respect  for  the  forms  of 
law.  At  first  the  parliamentary  party  fought  daintily. 
They  were  not  a  little  perplexed  as  to  what  they  should 
do  when  the  fighting  was  over.  The  simplest  plan 
seemed  to  be  to  push  their  armed  resistance  just  far 
enough  to  induce  the  King  to  pursue  a  tolerable  policy 
and  then  to  end  the  strife.  For  a  year  or  two  the  ad- 
vantages on  the  field  of  battle  were  on  the  side  of  the 


CHAP.  XXVI    REBELLION  AND  THE  COMMONWEALTH  293 

King.  The  moderate  fighting  of  the  parliamentary 
party  seemed  to  be  disastrous  and  to  promise  defeat 
and  failure. 

The  leaders  in  the  Commons  met  the  theory  of  the  court 
with  an  idealization  of  all  past  factional  strife  in  oppo- 
sition to  kings.  After  the  analogy  of  former  times  they 
intended  to  avail  themselves  of  the  physical  force  of  the 
unrepresented  masses  to  destroy  their  political  enemies. 
In  their  bitterest  strivings  with  the  King,  just  before  the 
beginning  of  this  eleven  years  of  arbitrary  rule,  there 
were  one  or  two  of  the  leaders  who  proposed  that  they 
should  adopt  the  policy  of  open  championship  of  the 
cause  of  the  people  in  resistance  to  arbitrary  exactions, 
but  the  majority  chose  the  narrow  policy  of  making  the 
contest  turn  on  the  privileges  of  members  of  the  House. 
They  expected  the  masses  of  the  people  to  fight  for  them, 
though  to  do  this  was  to  concede  that  a  member  of  Parlia- 
ment had  a  peculiar  right  to  be  shielded  from  arbitrary 
taxation.  The  lack  of  vigour  on  the  part  of  Parliament  in 
the  war  with  Charles  was  due  in  part  to  hereditary  fear 
of  the  unrepresented  masses. 

Thomas  Carlyle  has  placed  us  under  great  obligations 
for  his  contributions  to  the  discovery  of  Oliver  Cromwell. 
For  this  we  can  forgive  him  much  of  his  erroneous  and 
foolish  teaching  about  the  part  which  heroes  have  played 
in  human  history.  The  beneficent  hero  is  the  man  who 
recognizes,  expresses,  and  cooperates  with  certain  favour- 
able tendencies  which  exist  in  human  society  independ- 
ently of  the  small  self  of  the  hero.  Conspicuous  ability 
in  a  man  who  fails  to  do  this  is  a  nuisance.  Cromwell 
had  wit  enough  to  see,  if  Carlyle  did  not,  that  the  deter- 
mining factor  in  his  career  was  his  "honest  men." 
Without  these  he  was  nothing  and  could  do  nothing. 
The  honest  men  were  still  a  dominant  power  after  Crom- 
well was   dead.     When   they  were    disbanded   and   sent 


294        GROWTH   OF  THE   ENGLISH  CONSTITUTION    chap,  xxvi 

home,  they  were  still  conspicuous  among  their  neighbours 
for  sobriety  and  industry. 

For  a  thousand  years  or  more  it  had  been  the  habit  of 
Englishmen  to  destroy  the  enemies  of  the  leaders  who 
succeeded  in  pleasing  them  or  in  winning  their  favour. 
These  leaders  were  usually  selfish  and  factional.  From 
the  standpoint  of  the  people  the  choice  of  leaders  was  a 
choice  of  evils.  In  Oliver  Cromwell  the  people  found  a 
leader  who  was  in  spirit  and  sympathy  one  of  themselves. 
In  his  eyes  life  was  reduced  to  its  simplicities.  Royalty 
and  nobility  were  as  trumpery.  If  a  high-born  man 
showed  a  true  nobility  of  spirit  by  his  willingness  to  be 
commanded  by  the  peasant  officer  who  had  superior  gifts 
for  such  service,  he  was  received  and  honoured. '  If,  how- 
ever, he  showed  a  meanness  of  spirit  by  insisting  that  the 
accident  of  birth  should  count  in  his  favour,  Cromwell 
would  none  of  him.  Oliver's  honest  men  were  not  simply 
such  as  were  willing  to  die  for  duty ;  they  were  willing 
to  do  the  far  more  difficult  thing  of  attending  to  duty  in 
the  details  of  ordinary  life. 

By  means  of  a  few  thousand  common,  religious  English- 
men of  his  time,  Cromwell  made  himself  master  of  the 
united  kingdom  of  England  and  Ireland.  He  executed 
the  refractory  King,  and  for  a  decade  he  and  his  army 
were  practically  the  rulers  of  England.  For  a  time  this 
government  took  the  form  of  a  military  despotism.  Yet 
at  the  hands  of  this  government  real  justice  was  meted 
out  to  all  classes  more  perfectly  than  Englishmen  were 
wont  to  experience. 

Had  England  developed  any  sort  of  legal,  artificial  con- 
stitution, such  as  Americans  know,  those  attempts  at  con- 
stitution-making in  the  time  of  Cromwell  would  be  of 
immense  interest.  But  real  constitution-making  pro- 
ceeded along  other  lines  after  the  Commonwealth.  It  is, 
however,  a  great  mistake  to  suppose  that  Cromwell  and 


CHAP.  XXVI     REBELLION   AND   THE   COMMONWEALTH  295 

his  army  did  not  make  real  and  important  contributions 
to  the  English  Constitution.  In  the  first  place,  the 
movement  was  a  sort  of  re-creation  of  the  ancient  fear  and 
respect  felt  by  the  ruling  classes  for  the  common  English- 
man. There  was  but  one  English  king  so  dull  as  not  to 
learn  this  lesson.  And  he  was  thrust  from  the  English 
throne  with  the  disgust  of  Tories,  Whigs,  and  the  nation 
in  general.  This  respect  for  the  common  Englishman  is 
a  part  of  the  substance  of  the  modern  Constitution. 

Then,  too,  the  Cromwellian  episode  furnished  a  prece- 
dent for  the  participation  of  this  common  Englishman  in 
the  high  affairs  of  state.  It  is  true  that  there  was  a  sharp 
reaction  from  this  practice ;  yet,  as  Englishmen  looked 
back  upon  it  after  a  lapse  of  a  few  generations,  or  even 
after  only  a  few  years,^  the  government  of  Oliver  seemed 
quite  as  healthy,  quite  as  English  in  its  spirit  and  temper, 
as  the  government  of  any  king  by  the  name  of  James  or 
Charles.  It  helps  us  to  appreciate  the  equanimity  upon 
which  the  present  Constitution  depends  to  reflect  that 
Cromwell  and  his  army  did  not  grow  selfish  and  grasp- 
ing, but  that  they  sought  rather  to  do  good  unto  their 
fellow-men  as  they  had  opportunity.  Thirdly,  it  can  now 
be  said  that  there  was  a  time  when  England  had  a  gov- 
ernment without  a  king.  Englishmen  cannot  but  take 
pride  in  the  fact  that  during  the  Commonwealth  the  gov- 
ernment of  England  was  respected  abroad  as  almost  never 
before.  It  is  reasonable  to  believe  that  the  equanimity  so 
essential  to  the  present  Constitution  is  a  good  deal  pro- 
moted by  the  consciousness  that,  in  the  last  resort,  Eng- 
land is  not  shut  up  to  a  single  sort  of  government.  We 
may  reasonably  conclude  that  this  reflection  is  favour- 
able to  the  constitutional  temper  of  monarchs  as  well  as 
subjects. 

It  would  be  easy  to  extend  the  list  of  ideas  and  events 
1  See  Pepys'  Diary,  edited  by  Lord  Braybrooke,  pp.  415,  420. 


296       GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xxvi 

of  the  period  of  the  Civil  War  and  the  Commonwealth 
which  have  had  more  or  less  influence  upon  the  modern 
Constitution.  The  unity  and  the  simplicity  of  govern- 
ment were  broken.  In  1641  the  King's  ministers  were 
punished,  and  many  reforms  were  enacted  by  a  Parliament 
consisting  of  King,  Lords,  and  Commons.  Strafford  was 
attainted  and  executed  with  the  approval  of  the  King  and 
the  two  Houses.  In  1644  Laud  was  attainted  and  exe- 
cuted by  a  Parliament  consisting  of  Lords  and  Commons 
only,  and  the  judges  in  the  high  courts  refused  to  sup- 
port the  Lords  in  their  wish  to  withhold  their  approval 
of  the  execution.  In  1649  the  King  was  executed  by  or- 
der of  a  special  court,  created  by  the  act  of  a  Parliament 
consisting  of  a  House  of  Commons  only.  Such  events 
tend,  as  no  amount  of  political  debate  could,  to  force  the 
people  to  analyze  Parliament  into  its  component  parts. 
Such  events  tended  also  to  promote  that  indefiniteness  in 
the  use  of  the  word  "  Parliament "  which,  as  we  have  seen, 
is  so  important  and  convenient  a  feature  of  the  present 
Constitution.  These  events  were  likewise  favourable  to 
the  contention  that  the  House  of  Commons  is  the  one 
enduring  and  essential  part  of  Parliament. 

The  various  attempts  to  form  a  government  without  a 
king  are  of  especial  interest  to  Americans  in  that  they 
tended  to  promote  the  analysis  of  government  into  separate 
legislative  and  executive  departments.  This  tendency,  as 
we  shall  see,  was  arrested  in  England.  But  the  theory 
of  the  division  of  government  into  departments,  empha- 
sized in  the  time  of  the  Commonwealth,  while  exerting 
a  marked  influence  over  the  process  of  developing  the 
modern  English  Constitution,  controlled  in  a  positive  and 
striking  way  the  constitution-making  of  the  Englishmen 
who  colonized  America  during  the  Stuart  century. 

It  was  during  the  period  of  the  Civil  War  and  the  Com- 
monwealth,  that  the   religious  issues  arose  which  domi 


CHAP.  XXVI    REBELLION  AND  THE   COMMONWEALTH  297 

nated  English  politics  for  the  next  forty  years.  Charles 
and  Laud  had  convinced  the  Puritans  that  they  were  in- 
tending to  restore  Popery.  The  Puritans  in  the  Church 
of  England  looked  to  the  Scottish  Presbyterians  for  sup- 
port. In  1643,  while  the  parliamentary  army  was  in  dan- 
ger of  being  overcome  by  the  King's  army,  the  Parliament, 
in  order  to  secure  the  cooperation  of  the  Scottish .  army, 
adopted  the  Covenant,  and  thus  made  the  State  religion  in 
the  part  of  England  controlled  by  Parliament  Presbyte- 
rian. Episcopalians  who  would  not  subscribe  to"  the  Cov- 
enant were  deprived  of  their  livings.  The  Independents 
and  the  Baptists  greatly  increased  in  number,  while  the 
Quakers  and  many  other  sects  arose.  All  of  these  found 
their  chief  support  in  the  towns  and  cities,  while  in  the 
country  the  influential  classes  held  on  to  the  old  way 
and  the  old  religion.  The  Cavaliers  were  composed 
mainly  of  the  nobility,  and  the  clergy  of  the  Episcopal 
Church,  and  some  of  the  country  gentlemen.  The  Round- 
heads, or  the  Puritan  party,  had  their  chief  support  in 
the  towns. 

It  should  be  observed  that  before  the  Civil  War,  the  word 
"  Puritan  "  in  England  usually  meant  a  member  of  the  Estab- 
lished Episcopal  Church  who  was  opposed  to  the  innova- 
tions favoured  by  the  King.  But  after  the  Commonwealth 
the  word  never  meant  a  member  of  the  Established  Church. 
There  was  henceforth  little  use  for  the  word  except  in  its 
historic  term.  The  Puritan  party  fell  with  the  Common- 
wealth. After  the  Restoration  those  who  had  been  called 
Puritans  were  usually  called  Dissenters.  This  was  a  new 
term  applied  to  all  who  would  not  conform  to  the  worship 
of  the  restored  Church.  From  this  time  a  large  propor- 
tion of  the  English  people  were  Dissenters.  There  were 
still  a  few  Romanists,  Charles  II.  himself,  perhaps,  being 
secretly  one  of  them,  while  James  II. 's  adherence  to  the 
ancient    faith   was   undisguised.      A   large   part   of  the- 


298       GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xxvi 

political  contentions  for  thirty-eight  years,  until  the  depo- 
sition of  James  II.  in  1688,  turned  upon  the  effort  of  the 
kings  to  secure  the  toleration  of  Papists,  with  the  ulterior 
object,  as  the  people  believed,  of  reestablishing  the  papal 
Church. 


CHAPTER  XXVII      . 

THE  MONARCHY   OF   THE   RESTORATION 

rriHE  Convention  Parliament  which  restored  Charles  II. 
-■-  to  the  throne  passed  a  resolution  to  the  effect  that 
according  to  the  ancient  fundamental  laws  of  the  land  the 
government  consisted  and  should  consist  of  King,  Lords, 
and  Commons.  A  farther  resolution  attributed  all  the 
recent  troubles  to  an  attempt  to  destroy  the  ancient  Con- 
stitution by  the  separation  of  the  head  from  the  limbs, 
and  declared  that  this  breach  should  be  healed  by  restor- 
ing the  King  to  his  people.  The  restoration  of  the  King 
was  regarded  as  a  resumption  of  the  ancient  Constitution 
at  the  point  of  the  rupture  between  King  and  Parliament 
in  1641.  The  great  acts  of  reform  passed  by  the  Long 
Parliament  and  approved  by  Charles  I.  were  made  a  per- 
manent part  of  the  law  of  the  land.  Hyde,  who  was 
made  Earl  of  Clarendon,  and  who  had  deserted  the  parlia- 
mentary party  after  the  acts  of  reform  in  1641,  was  for 
seven  years  the  chief  adviser  of  the  restored  Monarch. 
If  the  question  had  been  asked.  What  shall  be  done  if 
the  King  should  persist  in  using  his  judicial  and  administra- 
tive agencies  in  violation  of  the  laws  of  Parliament  ?  no 
satisfactory  answer  could  have  been  given.  One  could 
not  say  that  a  refractory  king  might  be  beheaded,  because 
the  execution  of  Charles  I.  had  come  to  be  viewed  with 
horror.  The  King  could  not  in  any  legal  way  be  punished, 
because  he  was  an  essential  part  of  the  sovereign  power. 

299 


GJO        GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xxvii 

All  that  could  have  been  said  in  answer  to  such  a  question 
was  simply  that  it  was  expected  that  the  King  would  be 
reasonable  and  law-abiding.  If  he  were  not,  then  the 
Houses  of  Parliament  must  do  things  which  would  make 
life  disagreeable  to  him.  The  restored  government  under 
Charles  II.  was  the  same  undivided  authority  of  former 
times.  The  ancient  Constitution  was  still  double.  In  the 
minds  of  some,  the  King  was  subject,  in  the  last  analysis, 
to  that  part  of  the  government  known  as  the  two  Houses 
of  Parliament.  That  is,  the  King  was  linked  to  the  two 
Houses  in  such  a  way  that  he  could  not  act  without  them, 
and  hence  he  must  act  in  harmony  with  them.  In  the 
minds  of  others,  there  was  a  large  field  of  government 
in  which,  in  the  last  analysis,  the  two  Houses  were  sub- 
ject to  the  will  of  the  King.  In  their  view  the  ancient 
Constitution  secured  to  the  King  many  high  prerogatives. 
In  respect  to  these,  harmony  was  to  be  secured  by  the 
submission  of  the  two  Houses  to  the  will  of  the  King.  In 
any  event,  harmony  of  action  could  be  obtained  only  by 
assuming  a  peculiar  state  of  mind  on  the  part  of  the  King 
and  the  two  Houses.  The  two  Stuarts  of  the  Restoration 
brought  to  the  business  of  government  a  state  of  mind 
which  tended  in  its  results  to  clarify  the  double  vision  of 
the  ancient  Constitution. 

Charles  II.  and  James  II.  had  the  simple  notions  of  the 
ancient  Constitution  which  led  their  father  to  the  block. 
They  would  not  consent  to  define  a  limit  to  royal  pre- 
rogative. If  there  is  anything  which  it  would  seem  that 
a  king  ought  to  have  learned,  it  is  that,  after  the  failure 
of  the  scheme  of  arbitrary  taxation  in  the  hands  of 
Charles  I.  and  after  the  abolition  of  the  arbitrary  courts 
which  made  the  working  of  such  a  scheme  possible,  the 
King  must  hereafter  look  to  Parliament  as  the  source  of 
his  supplies.  But  it  does  not  appear  that  either  Charles  II. 
or  James  II.  had  at  any  time  any  notion  of  depending  upon 


CHAP.  XXVII    THE  MONARCHY  OF  THE  RESTORATION  301 

Parliament  for  all  their  supplies.  From  the  beginning 
of  his  rule  Charles  II.  was  negotiating  with  Holland  and 
France  for  money  which  would  enable  him  to  rule  with- 
out Parliament.  This  was  the  constant  policy  of  the  two 
kings  of  the  Restoration.  They  kept  their  eyes  upon 
France  for  both  money  and  troops  to  enable  them  to 
govern  England.  Charles  II.  was  wise  enough  or  indo- 
lent enough  to  find  the  line  of  least  resistance  in  English 
politics  for  the  promotion  of  his  policy.  Had  it  not  been 
for  the  question  of  religion,  we  may  believe  that  under 
such  a  king  the  Crown  would  have  regained  much  of  its 
lost  power. 

The  release  from  the  grip  of  Cromwell's  soldiers,  and 
the  coming  in  of  the  new  King  were  attended  with  almost 
universal  rejoicing.  This  was  expressed  by  sending  to  the 
new  King  a  Parliament  composed  almost  entirely  of  Cava- 
liers. The  country  gentlemen  who  had  felt  the  stern  hand 
of  upstart  military  officers  who  assumed  to  dictate  to  them 
the  details  of  their  private  lives,  experienced  a  great  relief. 
Now  that  the  Cavaliers  were  again  in  power,  it  is  probable 
that  the  memory  of  Cromwell's  rule  seemed  to  them  worse 
than  did  the  actual  endurance  of  it.  Lord  Clarendon 
probably  voiced  the  common  feeling  when  he  said  at  the 
opening  of  the  Cavalier  Parliament,  "  That  monster,  Com- 
monwealth, cost  this  nation  more,  in  her  few  years,  than 
the  monarchy  in  six  hundred  years.  The  confounding 
the  Commons  of  England  with  the  common  people  of 
England  was  the  first  ingredient  of  that  accursed  dose 
which  intoxicated  the  brains  of  men  with  the  imagination 
of  a  Commonwealth."  These  are  ravings  which  arise 
from  dread  of  the  ghost  of  Demos  which  hud  been  raised 
during  the  Civil  War.  In  the  Tudor  period  when  the 
people  enjoyed  the  support  of  kings,  the  common  people 
of  England  were  the  Commons  of  England.  Says  a  State 
paper  of  1515  :  "  What  comyn  f olke  in  all  this  world  may 


302         GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xxvii 

compare  with  the  comyns  of  England  in  riches,  freedom, 
liberty,  welfare  and  all  prosperitie  ?  What  comyn  f olke 
is  so  mighty,  so  strong  infelde  as  the  comyns  of  Eng- 
land?" i 

A  little  while  after  the  above  testimony  was  recorded,  in 
the  last  decade  of  the  reign  of  Henry  VIII.,  there  was  a 
rising  of  the  commons  against  the  government.  During 
the  Tudor  century  such  insurrections  were  described  as 
risings  of  the  commons  against  the  gentlemen.  But  after 
the  Puritan  Civil  War,  in  which  the  House  of  Commons, 
which  had  always  been  an  institution  of  gentlemen,  had 
been  roughly  handled  by  some  of  the  common  people  of 
England  who  claimed  a  share  in  the  government,  it  seemed 
natural  to  the  Cavalier  mind  to  draw  a  sharp  distinction 
between  the  Commons  of  England  and  the  common  people 
of  England.  According  to  the  new  definition  "the 
comyns  of  England  "  had  now  come  to  mean  the  gentle- 
man class  itself  having  a  share  in  the  government,  while 
the  common  people  of  England  were  simply  the  common 
herd  who  were  to  be  governed. 

At  the  time  of  the  invitation  for  the  return  of  Charles 
II.,  the  ground  was  still  insecure,  and  it  was  thought 
best  to  have  the  Presbyterians  unite  in  the  call,  and  Pres- 
byterians in  England  were  certainly  led  to  believe  that 
they  would  be  tolerated.  At  first  it  seemed  probable  that 
a  scheme  for  a  modified  episcopacy,  which  would  make  it 
easy  for  them  to  remain  in  the  Established  Church,  would 
be  adopted  ;  but  a  suggestion  from  the  King  that  Papists 
should  also  be  tolerated  caused  the  scheme  to  fail  in  the 
Convention  Parliament.  In  the  Cavalier  Parliament  the 
Episcopalians  were  so  strong,  the  hatred  of  Puritans  so 
intense,  and  the  memory  of  the  alliance  between  Pres- 
byterians and  Independents  so  fresh,  that  the  course  of 
legislation  was  turned  against  all  of  every  name  who 
1  Quoted  by  Froude,  History  of  England,  Vol.  I. ,  p.  27. 


CHAP.  XXVII    THE  MONARCHY  OF  THE  RESTORATION  303 

refused  to  conform  to  the  Episcopal  Church.  From  this 
date  Protestant  non-conformists  are  usually  called  Dis- 
senters, and  this  latter  term  is  applied  only  to  those  out- 
side the  Established  Church.  In  1661  a  Corporation  Act 
was  passed  making  it  unlawful  for  any  one  to  hold  office 
in  a  municipal  corporation  who  would  not  renounce  the 
Covenant  and  take  the  communion  according  to  the  forms 
of  the  Church  of  England.  This  act  had  the  effect  of 
excluding  Dissenters  from  Parliament,  since  in  many 
cases  the  corporations  chose  the  members.  By  the  Act  of 
Uniformity  passed  in  1662  every  clergyman  and  school- 
master was  required  to  assent  to  everything  contained  in 
the  Book  of  Common  Prayer.  This  drove  out  of  the 
Church  two  thousand  clergymen  at  one  time.  In  the 
towns,  Presbyterians  generally  went  with  the  Dissenters  ; 
in  the  country,  they  went  with  the  Episcopalians.  Thus 
the  towns  became  full  of  dissent,  while  the  country  was 
Episcopalian. 

The  King  proposed  to  relieve  Dissenters  from  the  pen- 
alties of  the  Act  of  Uniformity  by  the  exercise  of  his 
royal  prerogative.  His  chief  motive  was  believed  to  be 
sympathy  with  Papists.  The  Parliament,  though  in- 
tensely loyal,  would  not  brook  the  idea  of  tolerating 
either  Papists  or  Dissenters.  The  Conventicle  Act  of 
1664  forbade,  under  heavy  penalties,  any  meeting  for  wor- 
ship other  than  according  to  the  practice  of  the  Church  of 
England;  and  the  following  year  witnessed  the  passing 
of  the  Five  Mile  Act,  forbidding  a  Dissenting  minister  to 
come  within  five  miles  of  a  town,  or  borough,  or  any  place 
where  he  had  officiated  as  a  pastor. 

During  the  early  years  of  the  Cavalier  Parliament  vari- 
ous declarations  were  made  to  the  effect  that  it  was  a 
great  crime  to  take  up  arms  against  the  King.  One  act 
directed  against  Dissenters  required  them  to  take  an  oath 
of  non-resistance,  and  another  that  they  would   never 


304        GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xxvii 

endeavour  to  alter  the  government  of  Church  or  State. 
It  is  interesting  to  notice  that  the  House  of  Commons  in 
this  Cavalier  Parliament  had  become  the  English  Pope. 
It  exercised  the  power  which  in  the  former  reign  was  in 
the  hands  of  the  King,  and  Laud,  and  the  High  Commis- 
sion Court.  Charles  II.  desired  to  be  indulgent  towards 
Dissenters,  and  especially  towards  Roman  Catholics,  but 
that  was  the  one  thing  which  the  Cavaliers  in  the  House 
of  Commons  would  not  permit.  They  were  quite  willing 
to  pass  laws  requiring  other  people  to  obey  the  King,  but 
in  the  matter  of  religion  the  King  must  submit  to  the 
House  of  Commons. 

With  the  disappearance  of  the  old  arbitrary  courts, 
which  had  been  the  chief  weapons  in  the  hands  of  kings, 
since  the  coming  in  of  the  Tudors,  greater  prominence 
was  given  to  the  King's  ministers.  The  rule  of  Charles 
II.  furnished  a  sort  of  prophecy  of  this  great  and  unique 
feature  of  the  modern  Constitution.  He  had  something 
a  little  like  a  Cabinet,  with  a  statesman  at  its  head  who 
suggests  the  Prime  Minister.  The  changing  of  these 
ministers  also  corresponded  with  important  acts  in  Par- 
liament. For  seven  years,  until  1667,  Lord  Clarendon 
was  at  the  head  of  the  Ministry.  Clarendon  was  driven 
from  office  by  a  demand  of  the  House  of  Commons  for  an 
investigation  as  to  the  way  in  which  money,  voted  for  the 
war  with  Holland,  had  been  spent.  The  Commons  sus- 
pected that  it  had  been  squandered  on  the  King's  mis- 
tress, a  suspicion  which  was  well  founded.  The  minister 
resigned,  was  impeached  by  the  House,  and,  at  the  sug- 
gestion of  Charles,  fled  the  country.  After  Clarendon, 
the  King  relied  for  advice  upon  a  group  of  men  whose 
initial  letters  chanced  to  spell  the  word  "  Cabal."  It  has 
been  falsely  assumed  that  these  men  acted  together  after 
the  manner  of  a  Cabinet.  The  fact  is  that  they  were 
jealous  of  each  other,  and  were  not  consulted  by  the  King 


CHAP.  XXVII    THE  MONARCHY  OF  THE  RESTORATION  305 

in  a  body.  One  was  a  staunch  Romanist,  others  were 
Protestants,  still  others  were  indifferent  as  to  religion. 
In  1673  Arlington,  an  unscrupulous  man,  wishing  to  sup- 
plant Clifford,  a  staunch  Romanist,  in  the  office  of  the 
Treasury,  secured  the  passage  of  a  Test  Act  which  re- 
quired all  office-holders  in  the  government  to  take  an 
oath  declaring  a  disbelief  in  the  doctrine  of  transubstan- 
tiation,  and  to  take  the  communion  according  to  the  forms 
of  the  Church  of  England.  By  this  act  not  only  was 
Clifford  driven  from  office,  but  the  Duke  of  York,  after- 
wards James  II.,  was  forced  to  resign  his  office  in  the 
Admiralty,  and  all  consistent  Papists  were  deprived  of 
office. 


CHAPTER   XXVIII 

THE  BEGINNINGS   OF  POLITICAL  PARTIES 

THROM  1667  to  1675,  during  the  so-called  Cabal 
-^  Ministry,  the  King  was  really  his  own  minister, 
consulting  one  or  other  of  his  advisers  as  occasion  served. 
In  1675  Charles  found  in  the  Earl  of  Danby  a  minister 
able  to  relieve  him  of  some  of  the  burdens  of  political 
leadership.  All  the  ministers  of  the  Cabal  group  were 
discarded.  Among  these  was  Ashley  Cooper,  commonly 
known  as  the  Earl  of  Shaftesbury.  Shaftesbury  now 
became  the  recognized  leader  of  the  opposition  to  the 
King's  policy.  These  events  are  of  the  utmost  impor- 
tance in  their  relation  to  the  modern  Constitution,  because 
under  the  leadership  of  Danby  and  Shaftesbury  were 
developed  permanent  political  parties  and  party  names 
which  have  continued  to  the  present  day. 

More  than  a  hundred  years  earlier,  England  was 
divided  into  papal  and  Protestant  parties  of  almost 
equal  strength,  and  Elizabeth  ruled  by  a  persona- 
tion of  party  politics,  holding  an  even  balance  and 
following  the  dominant  tendency  in  the  State.  The 
contest  under  the  first  Stuarts  followed,  in  the  main, 
the  analogy  of  the  old  factions,  rather  than  that  of  the 
modern  party.  It  was  a  contest  chiefly  for  privileges. 
Yet  this  contest  had  in  it  resemblances  to  modern  politi- 
cal strife,  in  that  there  was  a  constant  aj^peal  to  the 
people  on  matters  of  opinion  as  touching  both  the  nature 

306 


CHAP,  xxvm    THE  BEGINNINGS  OF  POLITICAL  PARTIES        307 

of  the  government  and  the  question  of  religion.  In  the 
time  of  the  Civil  War,  the  two  sections  were  known  as 
Cavaliers  and  Koundheads,  but  there  was  little  more 
resemblance  to  the  modern  political  p.arty  than  was 
suggested  by  the  Red  Rose  and  the  White  Rose  two 
hundred  years  earlier.  In  1629,  when  Pym  and  a  few 
other  leaders  proposed  to  make  common  cause  with  all 
tax-payers  in  the  contest  over  the  Petition  of  Right 
rather  than  contend  for  the  peculiar  exemption  of  mem- 
bers of  the  House,  there  was  an  issue  raised  between  two 
divisions  of  the  parliamentary  party  which  is  quite  sug- 
gestive of  the  methods  of  modern  parties. 

The  modern  party  assumes  to  represent  the  true  inter- 
ests of  the  entire  people.  It  accepts  the  essential  features 
of  existing  institutions,  and  proposes  to  adopt  such  a 
policy  as  will  be  for  the  public  good.  The  life  of  the 
party  of  the  present  day  is  dependent  upon  the  existence 
of  conflicting  opinions  about  definite  policies.  The  his- 
torical continuity  of  the  two  modern  parties^  has  been 
dependent  largely  upon  two  views  of  English  history. 
One  party  emphasizes  the  blessings  which  have  come  to 
England  through  the  authority  of  the  Church  and  through 
orderly  government.  The  other  party  lays  greater  stress 
upon  the  blessings  which  have  come  to  Englishmen 
through  contests  for  liberty.  In  its  origin  one  of  the 
parties  took  the  Stuart  view  of  the  ancient  Constitution, 
while  the  other  was  more  inclined  to  the  parliamentary 
view  of  the  Constitution.  As  history  recedes,  there  is  a 
tendency  in  each  party  to  take  an  identical  view  of  the 
remote  past.  Yet  in  the  one  there  is  a  superior  fondness 
for  the  ancient  institutions,  such  as  the  monarchy,  the 
House  of  Lords,  and  the  Episcopacy ;  while  in  the  other 
party  there  is  a  special  fondness  for  reforms  and  for  the 
House  of  Commons  as  the  chief  agency  of  reform. 

When  Shaftesbury  was  dismissed  from  office,  in  1675, 


308       GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xxviii 

the  sentiment  in  favour  of  toleration  for  Dissenters  had 
become  strong.  Danby  headed  the  party  opposed  to  all 
toleration  either  of  Romanists  or  Dissenters.  Both 
parties  opposed  the  toleration  of  Romanists.  Danby 
brought  in  a  bill  forbidding  any  one  to  hold  office  or  sit 
in  Parliament  who  would  not  take  an  oath  declaring  that 
he  believed  resistance  to  the  King  to  be  in  all  cases  illegal, 
and  that  he  would  never  endeavour  to  alter  the  govern- 
ment of  Church  or  State.  Such  a  law  would  have  ex- 
cluded Shaftesbury's  party  from  Parliament,  and  he  suc- 
ceeded in  preventing  its  passage.  It  was  during  the 
Danby  Ministry  that  some  of  the  most  disgraceful  in- 
trigues of  Charles  II.  with  the  King  of  France  occurred. 
The  long-continued  policy  of  the  King  to  secure  the 
introduction  of  Romanism  through  aid  from  France  was 
having  the  effect  of  turning  public  sentiment  in  favour  of 
non-papal  Dissenters,  who  on  all  occasions  manifested  a 
disposition  to  suffer  persecution  at  the  hands  of  Parlia- 
ment rather  than  accept,  at  the  hands  of  the  King,  a 
toleration  which  included  Papists.  Shaftesbury  believed 
that  if  a  new  Parliament  could  be  assembled,  his  friends 
would  be  in  the  majority.  The  King  and  Danby  held 
to  the  Cavalier  Parliament  elected  in  1661,  fearing  that 
a  new  election  would  return  a  House  less  favourable. 
There  were  fears  of  French  invasions  and  popish  plots, 
and  Shaftesbury's  methods  of  agitation  tended  to  make 
the  most  of  these  fears. 

In  1678  Titus  Gates  began  that  remarkable  series  of 
fabrications  which  for  several  years  profoundly  effected 
the  public  mind,  and  resulted  in  the  judicial  murder  of 
many  innocent  Catholics.  About  the  same  time  Shaftes- 
bury came  into  possession  of  evidence  which  would  con- 
vict Danby  and  the  King  of  intrigues  with  the  King  of 
France,  and  Danby  was  impeached  and  driven  from  oflfice. 
The  King,  in  order  to  put  an  end  to  the  trial  of  Danby, 


CHAP.  XXVIII    THE  BEGINNINGS  OP  POLITICAL  PARTIES        309 

consented  to  dissolve  Parliament.  In  the  new  House  of 
Commons  the  party  of  Shaftesbury  had  a  large  majority, 
and  he  was  now  made  the  chief  minister.  The  new 
Parliament  passed  the  Habeas  Corpus  Act,  and  was 
proceeding  to  enact  a  law  which  would  exclude  the 
Roman  Catholic  James  from  the  throne.  To  prevent 
the  passage  of  this  bill,  Charles  dissolved  Parliament. 
Gates  and  other  liars  were  still  supplying  the  courts  and 
juries  with  Papist  victims,  and  the  new  Parliament  was 
still  more  favourable  to  the  party  of  Shaftesbury. 

The  King  now  took  personal  charge  of  the  opposition  to 
the  Shaftesbury  party.  He  gave  less  attention  to  intrigue 
with  Louis,  King  of  France,  and  addressed  himself  to 
the  task  of  winning  the  favour  of  the  English  voters. 
Shaftesbury  let  it  be  known  that  in  case  James  was 
excluded  from  the  succession  it  was  the  intention  of  his 
party  to  enthrone  the  Duke  of  Monmouth,  an  illegitimate 
son  of  Charles  II.  James  had  two  daughters  who  were 
Protestants,  the  eldest  being  the  wife  of  William  of 
Orange.  To  pass  over  the  claims  of  these  was  not 
according  to  the  views  of  the  better  class  in  Shaftesbury's 
party.  Charles  refused  to  assemble  the  new  Parliament, 
which  he  knew  to  be  against  him.  Shaftesbury  and  his 
friends  sent  up  petitions  for  the  assembling  of  Parliament. 
The  friends  of  the  King  sent  up  petitions  expressing  ab- 
horrence at  the  attempt  to  force  the  hand  of  the  King. 
It  was  at  this  time,  in  1680,  in  the  midst  of  this  "  petition- 
ing "  and  "  abhorring,"  that  the  two  parties  received  defi- 
nite "party  names."  The  names  first  employed  were 
"Petitioners,"  for  the  party  of  Shaftesbury,  and  "Ab- 
horrers,"  for  the  party  of  the  King.  After  a  time  the 
Petitioners  were  called  by  their  enemies  Whigs,  a  term 
which  was  intended  to  suggest  a  Covenanting  rebel  of 
Scotland,  from  Whigamore,  a  name  applied  to  the  peasants 
in  the  west  of  Scotland.     The  Petitioners  retorted  with 


SlO       GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xxvrn 

the  term  Tory^  a  word  suggesting  a  popish  thief  in  Ire- 
land. 

The  reaction  due  to  the  gradual  discovery  that  the 
popish  plots  were  manufactured,  and  that  many  Catholics 
had  been  judicially  murdered,  was  causing  public  opinion 
to  turn  in  the  King's  favour.  Tories  were  gradually  be- 
ing reconciled  to  the  succession  of  James.  The  troubles 
of  the  time  suggested  the  return  of  the  horrors  of  civil 
war.  A  rigid  theory  of  divine  right  was  put  forward. 
The  Tories  now  taught  that  it  not  only  was  a  sin  to  resist 
the  King,  but  also  that  the  hereditary  right  was  of  divine 
origin  and  was  indefeasible.  The  King  carefully  watched 
the  course  of  public  opinion.  He  assembled  Parliament 
late  in  1680,  and  when  it  proceeded  to  pass  the  Exclusion 
Bill,  it  was  dissolved.  Another  Parliament  was  called  the 
next  year,  which  was  also  Whig,  and  the  King,  fearing, 
or  pretending  to  fear,  violence  in  London,  summoned  it  to 
Oxford.  The  Whig  members,  also  fearing  violence,  went 
armed  to  Oxford.  These  reminders  of  the  beginning  of 
the  Civil  War  had  a  powerful  effect  upon  the  public  mind. 
Charles  now  became  sure  that  the  people  were  with  him, 
and  he  dismissed  the  third  Whig  Parliament,  and  ruled 
for  the  remaining  three  years  of  his  life  without  a  Parlia- 
ment. 

During  these  three  years  of  personal  rule,  Charles 
found  the  judges  in  the  high  courts  as  accommodating  as 
they  had  been  in  the  palmy  days  of  the  Tudors  and  early 
Stuarts.  London  had  been  a  stronghold  of  Whigs.  By 
a  writ  of  Quo  Warranto  Charles  called  upon  the  city  to 
show  cause  why  the  ancient  charter  should  not  be  for- 
feited. The  judges  of  the  King's  Bench  decided  in  the 
King's  favour.  Charles  then  tried  to  compromise  with 
the  city  and  arranged  a  new  charter  which  would  give 
the  King  a  controlling  hand  in  the  government.  Failing 
in  this,  he  took  the  government  of  London  into  his  own 


CHAP.  xxviTi    THE  BEGINNINGS  OP  POLITICAL  PARTIES        311 

hands  and  appointed  the  mayor  and  other  officers.  En- 
couraged by  this  success,  he  proceeded  to  remodel  all  the 
municipal  corporations  and  transfer  their  governments 
from  the  hands  of  Whigs  into  those  of  Tories.  When 
the  next  parliamentary  election  occurred  in  the  first  year 
of  James  II.,  the  members  from  towns  were  chiefly  Tories, 
having  been  chosen  by  the  new  corporations  created  by 
royal  prerogative.  Having  secured  control  of  the  gov- 
ernment of  London,  Charles  was  intending  to  proceed 
with  the  punishment  of  Shaftesbury  by  means  of  a  Tory 
jury.  Fearing  this,  the  Earl  fled  to  the  Continent,  where 
he  soon  died. 

In  1683  a  conspiracy,  known  as  the  Rye  House  Plot, 
was  formed  among  the  more  violent  of  the  Whigs  to  seize 
or  to  murder  the  King  and  his  brother.  The  discovery  of 
this  plot  led  to  the  revelation  of  a  plan  on  the  part  of  the 
leading  Whigs  to  force  the  King  to  call  a  Parliament. 
This  was  interpreted  as  a  treasonable  act.  The  Earl  of 
Essex,  one  of  the  accused,  committed  suicide,  and  Lord 
Russell,  a  fellow-conspirator,  was  brought  to  the  scaffold. 
Charles  was  thus  triumphant  over  all  his  enemies  and  had 
the  sympathy  of  the  great  body  of  the  nation.  He  had 
appealed  to  the  English  people  in  favour  of  the  claims 
of  his  brother  James  and  had  succeeded  in  crushing  out 
all  opposition.  When  the  King  died  in  1685,  James  was 
immediately  accepted  as  his  successor.  In  Scotland, 
indeed,  an  insignificant  rebellion  occurred,  and  the  Earl 
of  Monmouth  led  a  rising  in  the  west  of  England ;  but 
these  movements  were  in  themselves  of  trifling  conse- 
quence and  were  easily  suppressed. 


CHAPTER  XXIX 

THE  TYRANNY  OF   JAMES  II. 

TAMES  was  disposed  to  accept  literally  the  high  Tory 
^  doctrines  of  his  day,  and  to  draw  from  them  destruc- 
tive conclusions.  For  a  whole  generation  the  party  which 
had  now  come  to  be  called  the  Tory  party  had  been  com- 
pelling their  political  enemies  to  swear  that  it  was  a  sin 
to  resist  the  government  of  a  king.  For  a  few  years  the 
doctrine  had  been  strenuously  taught  that  it  was  likewise 
a  sin  to  desire  to  have  the  kingly  office  filled  by  other 
than  the  person  providentially  born  in  the  direct  line  of 
succession.  There  was  not  only  the  divine  right  to  be 
obeyed ;  there  was  also  the  divine  right  of  the  heir  to  be 
crowned.  Coincident  with  the  teaching  of  these  extreme 
views  Charles  II.  and  his  brother  James  had  grown  im- 
mensely popular.  There  was  a  universal  dread  of  civil 
war.  Charles  probably  had  wisdom  enough  to  distinguish 
between  the  dread  of  civil  war  and  a  belief  in  the  foolish 
doctrine  of  divine  right.  He  had  learned  from  experience 
that  the  stiff  Tories  of  his  day  never  intended  to  apply 
their  doctrines  to  any  but  their  political  enemies.  What- 
ever may  be  said  of  other  Stuarts,  it  would  seem  that  all 
must  agree  that  James  II.,  on  all  matters  touching  his 
religion  and  his  duties  as  king,  was  wholly  lacking  in 
common  sense.  He  found  England  loyal  to  the  core 
and  united  in  the  support  of  his  claim  to  the  throne.  In 
three  short  years  he  became  a  fugitive  from  throne  and 

312 


CHAP.  XXIX  THE  TYRANNY  OF  JAMES  II.  313 

country,  leaving  England  united  in  the  purpose  to  permit 
neither  James  nor  the  son  of  James  to  ever  occupy  the 
English  throne. 

Had  James  been  capable  of  learning  from  experience  or 
from  observation,  he  would  have  known  that  it  was  useless 
to  attempt  to  force  the  Roman  Catholic  religion  upon  the 
English  Tories.  Even  in  their  acceptance  of  the  extreme 
doctrine  of  divine  right  they  had  recognized  the  fact 
that  a  king  might  order  an  act  contrary  to  the  divine 
law.  In  that  case  they  taught  that  it  was  the  duty  of  the 
subject  to  suffer  the  penalties  of  the  King's  government 
rather  than  disobey  God.  James  called  a  Parliament 
which  was  largely  Tory,  partly  because  of  his  own  popu- 
larity, and  partly  because,  three  years  before,  Charles 
had  placed  the  municipal  corporations  in  the  hands  of 
Tories.  Yet  this  Tory  Parliament  soon  found  itself  in 
opposition  to  the  King's  policy. 

The  King  asked  for  the  repeal  of  the  Test  Act,  and 
Parliament  refused.  The  King  had  already  adopted  the 
policy  of  appointing  Roman  Catholics  to  office  in  violation 
of  the  Act.  Parliament  began  to  prepare  a  formal  re- 
monstrance, and  the  King  prorogued  the  two  Houses. 
Failing  to  get  his  acts  legalized  in  one  way,  he  tried 
another.  He  asked  the  judges  if  it  would  be  legal  for 
him  by  the  exercise  of  royal  prerogative  to  dispense  with 
the  operation  of  the  Test  Act.  Four  of  the  judges  de- 
cided contrary  to  his  wishes,  whereupon  he  immediately 
dismissed  them  and  filled  their  places  with  four  others 
who  held  his  view.  He  then  secured  a  unanimous  de- 
cision by  the  court  that  the  King  had  power  to  dispense 
with  the  operation  of  a  law. 

Having  now  an  obedient  and  efficient  judiciary,  the 
King's  policy  rapidly  developed.  Clergymen  who  had 
openly  espoused  the  Roman  Catholic  religion  were  kept 
in  office.      Papists  were  appointed  to  vacant  benefices. 


314  GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xxix 

To  assist  in  reforming  the  Church  he  established  by  royal 
order  an  Ecclesiastical  Commission  Court,  and  issued  a 
declaration  suspending  the  operation  of  all  laws  against 
Dissenters  and  Papists.  In  the  teeth  of  the  fiercest  oppo- 
sition he  forced  a  Catholic  president  upon  Magdalen  Col- 
lege, Oxford.  James  had  succeeded  so  thoroughly  in  the 
packing  of  courts  and  juries  that  at  the  end  of  two  years 
he  determined  to  pack  a  Parliament.  As  Charles  in  1682 
had  changed  the  voting  constituency  in  municipal  corpo- 
rations from  Whigs  to  Tories,  so  James,  in  1687,  reor- 
ganized the  corporations  and  changed  the  voting  con- 
stituency from  Protestant  to  Roman  Catholic.  Yet  even 
in  these  changed  municipalities,  with  the  notorious 
Jeffreys  at  the  head  of  the  Commission  of  Elections,  it 
was  found  to  be  impossible  to  get  a  Parliament  which 
would  ratify  the  King's  policy. 

Failing  in  his  efforts  to  pack  a  Parliament,  James  then 
fell  back  upon  his  packed  courts  and  the  royal  preroga- 
tive. He  issued  a  second  Declaration  of  Indulgence, 
which  he  ordered  clergymen  to  read  in  all  places  of  wor- 
ship. By  a  sort  of  poetic  justice,  the  brunt  of  the  opposi- 
tion to  the  detested  policy  of  James  fell  upon  those  very 
clergymen  who,  by  their  narrow  partisan  policy,  had 
driven  from  their  ranks  the  Presbyterians,  had  pursued  a 
cruel  and  vindictive  course  towards  all  Dissenters,  and 
had  for  a  quarter  of  a  century  most  assiduously  preached 
the  doctrine  that  it  was  a  sin  to  resist  a  king.  When  six 
bishops  came  into  the  presence  of  the  King  with  a  petition 
requesting  that  the  clergymen  be  excused  from  obeying 
the  King's  order,  James  saw  in  the  act  the  raising  of 
the  standard  of  rebellion,  and  expressed  surprise  that 
these  men,  above  all  others,  should  be  the  first  to  rebel 
against  his  authority.  He  did  not  understand  that  in 
political  matters  it  makes  a  very  great  difference  who 
owns  the  ox  that  is  gored.     Whatever  may  be  said  of  the 


CHAp)^i««,  .FO^TBB  TYRANNY  OF  JAMES  II.  315 


clergymen  of  the  Restoration,  they  were  Protestant  in 
their  convictions  and  would  sacrifice  their  lives  rather 
than  see  the  Roman  Catholic  religion  restored.  Encour- 
aged by  the  example  of  the  bishops,  the  Protestant  clergy, 
generally,  refused  to  obey  the  King's  order.  Instead  of 
reading  the  Declaration  of  Indulgence  according  to  the 
order,  the  father  of  John  Wesley  preached  from  the  text, 
"  Be  it  known  unto  thee,  O  king,  we  will  not  serve  thy 
gods,  nor  worship  the  golden  image  which  thou  hast  set 
up." 

James  seemed  not  in  the  least  daunted  at  this  demon- 
stration, which  would  have  convinced  a  wiser  ruler  that 
his  position  was  untenable.  What  could  a  king  do  in 
such  a  country,  where  even  Jeffreys,  with  almost  un- 
limited power  of  choice,  could  not  find  in  the  towns  and 
cities  of  England  men  who  would  sustain  the  King's 
policy,  and  where  even  the  Tory  Church  was  almost  a  unit 
in  the  determination  to  disobey  the  Sovereign's  express 
command?  The  King,  however,  had  still  one  agency 
which  had  thus  far  proved  faithful.  At  the  time  of  the 
Monmouth  rebellion,  there  seemed  to  be  no  limit  to  the 
cruelty  which  could  be  wreaked  upon  the  sympathizers 
with  the  Monmouth  faction.  Even  the  Bloody  Assize  of 
Jeffreys  seemed  at  the  time  to  be  not  out  of  harmony 
with  the  temper  of  the  public.  In  the  use  of  his  judicial 
and  administrative  agents,  the  King  had  not  been  seri- 
ously resisted.  Sheriffs,  constables,  juries,  and  judges 
had  been  found  who  would  do  what  they  were  told  to  do 
by  the  King  and  his  friends.  James  relied  upon  these 
agencies  to  effect  the  summary  punishment  of  the  seven 
bishops  who  had  signed  the  petition.  They  were  tried 
upon  the  charge  of  seditious  libel ;  but  such  had  come 
now  to  be  the  feeling  of  opposition  to  the  King,  that  even 
the  packed  jury  united  in  a  verdict  of  not  guilty.  Under 
the  very  eye  of  James,  the  soldiers  whom  he  was  reviewing. 


316  GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xxix 

and  upon  whom  he  was  confidently  relying  to  crush  out 
rebellion,  joined  in  the  popular  clamour  when  the  news  was 
received  that  the  bishops  had  been  acquitted. 

In  the  midst  of  the  contest  between  king  and  bishops, 
a  son  was  born  to  James  and  his  Roman  Catholic  wife. 
So  long  as  the  direct  heirs  to  the  throne  were  the 
Protestant  daughters  of  JamCvS,  the  English  Tories  could 
hold  the  theory  of  the  divine  right  of  inheritance.  They 
could  submit  to  much  worrying  at  the  hands  of  the 
King,  with  the  prospect  of  relief  as  soon  as  he  should 
die.  But  to  contemplate  the  succession  of  a  Papist  son 
was  more  than  they  could  endure.  A  partisan  inter- 
est was  felt  by  the  Tories  in  James's  oldest  daughter 
Mary,  who  was  the  wife  of  William  of  Orange,  because 
when  Shaftesbury  and  the  Whigs  put  forward  the  candi- 
dacy of  Monmouth,  the  Tories  broke  the  force  of  the 
movement  by  urging  the  claims  of  Mary.  When  Mon- 
mouth was  out  of  the  way,  William  and  Mary  became 
the  candidates  of  the  Whigs  also.  The  birth  of  a  son  to 
the  King  coincided  with  the  height  of  national  indigna- 
tion at  the  royal  policy.  The  bishops  were  under  arrest ; 
the  exigencies-  of  the  condition  of  William  of  Orange  in 
his  efforts  to  save  his  country  from  the  grasp  of  Louis 
XIV.  made  it  seem  absolutely  necessary  that  he  should 
have  the  cooperation  of  England.  So,  upon  the  topmost 
wave  of  the  national  rejoicing  at  the  acquittal  of  the  bish- 
ops, leading  Tories  and  Whigs  united  in  an  invitation  to 
William  to  come  over  and  deliver  them  from  their  king. 
William  promptly  began  to  prepare  an  army  of  invasion. 
When  he  landed  he  was  received  as  a.  deliverer.  A  large 
part  of  James's  army  deserted  him  and  joined  that  of 
William.  The  King  remembered  the  fate  of  his  father, 
and  took  refuge  with  his  friend,  the  enemy  of  England, 
Louis  XIV.  of  France. 


CHAPTER  XXX 

THE   GREAT   REVOLUTION 

WITH  the  departure  of  James,  England  was  without 
a  legal,  orderly  government.  William  consulted 
with  the  House  of  Lords  and  such  members  of  the  various 
Parliaments  of  Charles  II.  as  could  be  assembled.  The 
members  of  the  one  Parliament  of  James  II.  were  not 
called,  because  they  had  been  chosen  by  the  remodelled 
corporations,  and  it  was  assumed  that  such  a  choice  was 
invalid.  The  Lords  and  the  Assembly  advised  the  call- 
ing of  a  Parliament.  The  Parliament  thus  called  was 
regular  and  legal,  except  that  there  was  no  king  to  sum- 
mon it.  This  Parliament  declared  that  "  King  James  II., 
having  endeavoured  to  subvert  the  Constitution  of  the 
kingdom  by  breaking  the  original  contract  between  king 
and  people,  and  by  the  advice  of  Jesuits  and  other  wicked 
persons  having  violated  the  fundamental  laws,  and  having 
withdrawn  himself  out  of  the  kingdom,  had  abdicated 
the  government,  and  the  throne  had  thereby  become  va- 
cant." Parliament  having  thus  satisfied  its  members  that 
the  throne  was  vacant,  proceeded  to  fill  the  throne  by 
crowning  William  and  Mary  as  jointly  King  and  Queen 
of  England,  with  the  proviso  that  the  administration 
should  rest  wholly  with  William.  The  crowning  of  the 
new  Monarchs  was  conditioned  upon  the  acceptance  of  an 
elaborate  statute  then  known  as  the  Petition  of   Right, 

317 


318        GROWTH   OF  THE   ENGLISH   CONSTITUTION    chap,  xxx 

but  afterwards  called  the  Bill  of  Rights,  in  which  all 
recent  abuses  of  royal  prerogative  were  made  illegal. 

This  is  what  historians  call  the  Great  Revolution.  It 
was  a  bloodless  revolution.  There  was  apparently  just 
as  slight  a  change  in  the  government  as  was  consistent 
with  the  getting  rid  of  James.  The  Tory  Lords  would 
have  preferred  to  make  William  Regent,  and  Mary  Queen, 
but  William  gave  them  to  understand  that  if  he  was  not 
made  King  for  life,  he  would  return  with  his  army  to  Hol- 
land. The  English  feared  that  such  an  act  would  leave 
them  to  the  tender  mercies  of  the  army  of  Louis  and 
James.  The  crowning  of  William  was  as  severe  a  shock 
to  the  theory  of  divine  hereditary  right  as  the  joining  of 
William's  army  had  been  fatal  to  the  doctrine  of  non- 
resistance. 

This  revolution  was  great  because  of  the  theories  which 
came  to  be  permanently  associated  with  it.  It  suddenly 
put  an  end  to  a  constitutional  contention  of  a  hundred 
years.  William  was  many  times  dissatisfied  on  account 
of  his  treatment  at  the  hands  of  Parliament,  but  he  at 
no  time  asserted  a  divine  right  to  rule  in  defiance  of 
Parliament.  No  one  could  say  that  he  had  any  title  to 
the  throne  other  than  that  conferred  on  him  by  an  act 
of  Parliament.  All  through  the  reign  of  Anne,  the  right- 
ful heir,  according  to  hereditary  right,  was  on  the  Con- 
tinent, backed  by  the  King  of  France,  who  was  ready  at 
any  time  to  force  the  English  people  to  recognize  the 
claim  of  the  son  of  James.  .  So  long  as  Louis  lived  and 
fought  there  was  no  time  for  Englishmen  to  divide  over 
nice  theories  about  their  Constitution.  William  ruled  by 
the  favour  of  Parliament  ;  Anne  ruled  likewise  by  the 
grace  of  Parliament.  Then  upon  the  death  of  Anne,  with 
the  direct  heir  to  the  throne  still  living  and  contending  for 
his  rights,  an  entirely  new  family  of  rulers  was  imported 
from  the  Continent  and  installed  in  possession  of  the  Eng- 


CHAP.  XXX  THE   GREAT   REVOLUTION  319 

Jish  Crown.  For  more  than  two  generations  the  existence 
of  the  pretenders  to  the  throne  caused  the  English  nation 
to  keep  alive  the  contention  that  the  throne  should  be 
filled,  not  by  hereditary  right,  but  according  to  the  par- 
liamentary title.  Thus,  in  order  to  recognize  the  Revo- 
lution as  really  great,  it  must  be  viewed  in  its  relations 
to  what  went  before  and  with  what  followed.  The 
theory  of  unbroken  development  as  applied  to  the  Eng- 
lish Constitution  is  doubtless  true  enough,  but  there  is  a 
serious  psychological  objection  to  it.  It  is  tiresome.  It 
is  a  great  relief  to  the  mind  to  have  somewhere  a  rest- 
ing-place. It  is  fortunate  that  the  events  which  cluster 
around  the  discarding  of  one  family  of  English  monarchs, 
and  the  providing  by  statutes  for  three  distinct  families, 
each  under  certain  specified  and  diverse  contingencies,  to 
take  its  place,  furnish  such  a  resting-place  in  the  study  of 
the  English  Constitution. 

It  is,  however,  a  great  mistake  to  suppose  that  the 
modern  Constitution,  as  we  know  it,  can  be  derived  from 
the  Great  Revolution.  If  the  Great  Revolution  had  been 
permitted  to  give  the  final  stamp  to  the  Constitution,  it 
would  inevitably  have  advanced  the  legislative  or  the 
constructive  functions  of  the  two  Houses  to  the  leading 
place  in  the  government.  This  would  have  resulted  in 
some  sort  of  legal,  formal  constitution.  But  we  have  seen 
that  the  unique  feature  of  the  modern  Constitution  is 
found  in  the  fact  that  the  two  Houses  act,  in  a  sense,  in 
subordination  to  the  officers  of  the  Crown.  The  two 
Houses  to-day  are  imbecile  until  they  can  find  a  Cabinet 
to  direct  and  control  their  action. 

We  can  never  understand  the  modern  Constitution  if 
we  assume  that  the  peculiar  view  of  the  Constitution  held 
by  the  Tudors  and  the  Stuarts  wholly  disappeared  at  the 
Great  Revolution.  The  special,  distinctive  notions  of 
"  divine   right "    which   led   to   the    elaboration    of   that 


1 


320         GROWTH   OF  THE   ENGLISH  CONSTITUTION    chap,  xxx 

theory  were  indeed  then  abandoned.  But,  viewed  from 
the  practical  side,  the  sort  of  government  at  which  Tudors 
and  Stuarts  aimed  is  exactly  the  thing  that  survived  the 
Revolution.  According  to  that  view,  government  is  a 
unit ;  legislation  is  an  incident  to  government ;  harmony 
of  action  is  secured  by  committing  the  legislative  business 
to  the  leadership  of  the  administrative  officers.  It  is  the 
enigma  of  the  modern  Constitution  that  this  Stuart  view 
of  government  has  actually  been  made  to  harmonize  with 
the  practical  sovereignty  of  the  nation  as  represented  in 
the  House  of  Commons.  The  Executive,  while  continuing 
to  administer  the  government,  using  the  two  Houses  as 
mere  agencies  of  government,  has  at  the  same  time  become 
practically  subject  to  the  Lower  House  and  to  the  voting 
constituency  of  the  nation.  James  I.  could  not  under- 
stand how  a  Presbyterian,  republican  Assembly  could  be 
reconciled  with  monarchy.  The  modern  statesman  and 
philosopher  are  as  completely  in  the  dark  on  that  point  as 
was  the  sage  Scottish  King.  But  if  the  Presbyterian 
Assembly  would  consent  to  divide  itself  into  permanent 
parties,  acting  as  organs  of  public  opinion,  and  if  it  would 
consent  to  the  constant  dictation  of  party  leaders,  and  if, 
at  the  same  time,  a  succession  of  monarchs  could  be  found 
who  would  consent  to  accept  as  their  sole  advisers  and 
ministers  these  same  party  leaders,  then  a  means  of  recon- 
ciliation might  be  seen. 

The  Great  Revolution  did  not  give  to  England  the 
Cabinet  system  of  government.  That  has  been  a  plant  of 
slow  growth,  depending  upon  a  series  of  fortunate  circum- 
stances. It  was  favourable  to  its  development  that  the 
peculiar  situation  of  William  III.  tended  to  force  an 
analysis  of  government  into  executive  and  legislative  de- 
partments. Some  foreshadowing  of  this  we  have  seen 
in  the  attempts  made  under  the  Commonwealth  to  form  a 
legal  system.     The  reaction  which  followed  the  Common- 


CHAP.  XXX  THE   GREAT  REVOLUTION  321 

wealth  caused  efforts  of  that  sort  to  be  viewed  as  repub- 
lican innovations,  and  when  the  King  was  restored,  there 
was  put  forth  the  old  idea  that  government  by  right  and 
by  fact  should  consist  of  King,  Lords,  and  Commons. 
But  the  Parliament  which  declared  the  throne  vacant  and 
crowned  William  and  Mary  was  composed  of  Lords  and 
Commons  alone ;  and,  owing  to  peculiar  difficulties  attend- 
ing a  dual  monarchy,  it  was  enacted  that  the  administration 
should  rest  with  William  alone. 

Bishop  Burnet  mentions  a  peculiar  case  of  the  analysis 
of  government  which  occurred  in  1701.  It  was  at  a  time 
when,  after  the  death  of  James  II.,  Louis  XIV.  had  ac- 
knowledged his  son  as  James  III.,  King  of  England.  An 
act  was  introduced  into  Parliament  providing  that  an  oath 
should  be  taken  abjuring  the  pretensions  of  the  new  King. 
Various  extraneous  matters  were  included  in  this  act. 
Among  others  was  a  clause  declaring  that  the  govern- 
ment in  King,  Lords,  and  Commons  should  be  maintained. 
This  clause,  we  are  told,  was  rejected  with  indignation  in 
the  House  of  Commons ;  "  since  the  government  was  only 
in  the  King;  the  Lords  and  Commons  being  indeed  a 
part  of  the  Constitution  and  of  the  legislative  body,  but 
not  of  the  government."  Burnet  calls  this  "a  bare- 
faced republican  notion  which  was  wont  to  be  condemned 
as  such,  by  the  same  persons  who  now  pressed  it."  ^  The 
allusion  here  is  undoubtedly  to  the  republican  writers  of 
the  Commonwealth,  notably  Harrington,  who  did  put 
forward  a  scheme  of  government  embodying  what  we 
now  know  as  the  American  plan  of  balancing  one  depart- 
ment against  another.  It  seems  likely  that  when  the 
Parliament  which  recalled  Charles  II.  affirmed  that  gov- 
ernment of  right  consisted  in  King,  Lords,  and  Commons, 
the  intention  was  not  only  to  restore  the  ancient  form  of 
government,  but  at  the  same  time  to  deny  the  republican 
1  Burnet's  History  of  His  Own  Times,  Vol.  IV.,  p.  562. 


322         GROWTH  OF  THE   ENGLISH   CONSTITUTION    chap,  xxx 

doctrine  of  the  division  of  government  into  departments. 
But  now  it  seemed  that  the  Tories  and  high  prerogative 
Whigs  rejected  with  indignation  a  clause  affirming  that 
the  government  should  be  thus  maintained.  That  is, 
they  analyzed  it  into  two  parts  only ;  viz.  the  Executive, 
which  was  the  government^  and  the  Legislature,  which  was 
a  coordinate  part  of  the  Constitution. 

There  were  peculiar  experiences  for  the  Tories  in  1701. 
The  government  of  William  III.  had  not  been  acceptable 
to  them.  During  the  greater  part  of  the  time  the  Whigs 
had  held  the  chief  offices.  The  appointing  of  so  many 
foreigners  to  office  was  offensive.  The  Tories  expected 
better  treatment  under  the  rule  of  Anne.  So  long  as 
Anne  had  a  son  with  a  Tory  education  to  succeed  her, 
their  case  was  hopeful.  But  when  her  last  son  had  died 
and  the  Tories  were  forced  to  contemplate  the  probability 
of  the  early  introduction  of  another  family  of  foreign 
rulers,  they  were  naturally  inclined  to  revise  their  notions 
of  the  high  prerogatives  of  the  Crown.  Thus  it  came 
about  that  Tories  were  also  prepared  to  look  with  favour 
upon  the  two  Houses  as  a  means  of  checking  the  Execu- 
tive. 


CHAPTER  XXXI 

THE   ACT   OF   SETTLEMENT 

THE  Act  of  Settlement  was  passed  at  the  time  when 
the  Tories  had  a  majority  in  the  House  of  Com- 
mons. Various  provisions  of  this  act  indicated  a  disposi- 
tion to  place  increased  restrictions  upon  the  Monarch. 
For  example,  the  Hanoverian  sovereigns  were  required  to 
be  in  communion  with  the  Church  of  England.  They 
were  not  to  engage  in  a  war  on  account  of  their  foreign 
possessions  without  the  consent  of  Parliament.  They 
were  not  to  leave  the  kingdom  without  the  consent  of 
Parliament.  The  pardon  of  the  Monarch  was  not  to  be 
allowed  to  interfere  with  the  impeachment  of  ministers. 
There  was  also  a  provision  that  after  the  death  of  Anne 
no  foreigner  should  sit  in  Parliament,  or  be  a  member  of 
the  Privy  Council,  or  hold  lands  granted  to  him  by  the 
Crown.  These  various  provisions  of  the  Act  of  Settle- 
ment have  their  chief  interest  in  the  fact  that  they  mani- 
fested a  disposition  on  the  part  of  the  Tories  who 
supported  them  to  join  with  the  Whigs  in  the  policy  of 
placing  restrictions  upon  the  Crown.  This  changed  atti- 
tude of  the  Tories  is  largely  due  to  the  actual  experience 
with  William  as  an  alien  king,  and  to  the  prospect  of  a 
succession  of  alien  rulers  after  the  death  of  Anne.  None 
of  these  provisions  were  effective  in  permanently  limit- 
ing the  Crown.     Some  of  them  were  repealed  when  the 

323 


324       GROWTH   OF   THE   ENGLISH   CONSTITUTION    chap,  xxxi 

Hanoverians  were  crowned,  while  a  change  of  circum- 
stances rendered  others  of  no  effect. 

Another  provision  of  the  Act  of  Settlement  marks  an 
important  change  in  the  government  which  did  greatly 
affect  the  power  of  the  Crown.  It  is  a  provision  making 
the  tenure  of  office  on  the  part  of  the  judges  permanent, 
or  during  good  behaviour,  and  making  them  removable 
upon  an  address  to  the  Crown  passed  by  both  Houses  of 
Parliament.  With  the  judges  removable  by  the  King, 
the  courts  had  been  the  chief  agencies  of  arbitrary  gov- 
ernment. The  courts  were  still  faithful  and  compliant 
to  James  II.  when  he  was  driven  from  England.  If  such 
conduct  on  the  part  of  king  and  courts  could  have  con- 
tinued after  1688,  the  Revolution  could  not  have  been  in 
any  sense  great.  This  provision  in  the  Act  of  Settlement 
marks  a  change  which  the  conduct  of  James  and  Jeffreys 
had  made  inevitable.  It  is  fortunate  for  the  orderly 
development  of  the  modern  Constitution  that  the  change 
took  the  form  of  an  independence  of  the  Judiciary. 

There  were  still  other  provisions  in  the  Act  of  Settle- 
ment which  are  of  much  interest  to  one  who  would" under- 
stand that  development.  One  of  these  required  that  mat- 
ters of  State  should  be  discussed  in  the  Privy  Council,  and 
that  the  ministers  who  approved  the  policy  should  sign 
their  names  to  the  resolutions  adopted.  This  was  a  blow  at 
the  custom  which  had  grown  up  in  the  time  of  Charles  II. , 
and  had  been  continued  under  William  III.,  of  consulting 
only  a  few  of  the  ministers  in  secret  meeting.  The  public 
was  not  informed  what  advice  was  given  in  these  secret 
meetings,  or  who  was  responsible  for  that  advice.  The 
new  law  was  intended  to  remove  this  apparent  defect.  It 
will  be  seen  that  if  the  new  law  had  taken  root  and  had 
controlled  the  action  of  the  government,  the  Cabinet 
system  of  government  would  never  have  been  developed. 
The  law  made  those  acts  which  finally  resulted  in  the  es- 


CHAP.  XXXI  THE    ACT   OF   SETTLEMENT  325 

tablisliment  of  the  Cabinet  system  illegal.  It  was  found 
upon  trial  that  the  ministers  would  not  give  advice  freely 
if  they  were  to  be  held  personally  responsible  for  it.  Early 
in  Anne's  reign  the  law  was- repealed  and  the  secret  meet- 
ings of  the  Queen  and  a  few  chosen  ministers  continued. 

Still  another  provision  in  the  Act  of  Settlement  per- 
manently affecting  the  conduct  of  public  business  pertains 
to  the  exclusion  of  officers  from  Parliament.  When  a 
minister  of  high  rank  now  accepts  office,  he  resigns  his 
seat  in  Parliament  and  appeals  to  his  constituents  for 
reelection.  This  custom  arose  out  of  a  clause  in  the  Act 
of  Settlement  which  originally  forbade  all  pensioners  and 
holders  of  places  at  the  hands  of  the  Crown  to  hold  seats 
in  the  House  of  Commons.  The  object  of  the  law  was  to 
prevent  the  King  and  leading  ministers  of  the  day  from 
controlling  the  action  of  the  House  of  Commons  through 
the  bribery  of  office.  Early  in  the  reign  of  Anne,  the  law 
was  modified  and  given  its  present  form.  The  holders  of 
certain  lower  offices  were  still  forbidden  to  sit  as  members 
of  Parliament,  while  the  acceptance  of  one  of  the  high 
offices  vacated  the  seat  in  Parliament  and  necessitated  a 
new  election.  The  result  is  that  the  holders  of  about 
sixty  of  the  highest  offices  must,  according  to  modern 
understandings  and  modern  law,  be  members  of  Parlia- 
ment, while  the  holders  of  all  the  other  offices  may  not 
be  members  of  Parliament. 

It  should  be  observed  that  at  the  time  of  the  passage  of 
the  Act  of  Settlement  the  Cabinet  system  had  not  become 
established.  There  were,  however,  certain  customs  which 
contributed  to  the  development  of  that  system.  The  act 
forbidding  office-holders  from  having  a  seat  in  Parlia- 
ment, like  the  act  requiring  ministers  to  give  open  advice 
in  Privy  Council,  was  intended  to  alter  those  customs. 
If  these  laws  had  been  retained  and  enforced,  the  Cabinet 
system  could  not  have  been  developed. 


326       GROWTH  OP  THE  ENGLISH  CONSTITUTION    chap,  xxxi 

The  Act  of  Settlement  may  be  regarded  as  the  parting 
of  the  ways  between  two  distinct  types  of  free  govern- 
ment. The  spirit  of  the  act  was  clearly  against  the  Cabi- 
net system.  It  was  decidedly  in  the  direction  of  subor- 
dinating the  administrative  agencies  to  the  will  of  the 
Parliament.  Had  this  latter  tendency  continued  and 
become  permanent,  there  might  still  have  grown  up  a  free 
Constitution,  but  there  would  have  been  a  separation  of 
legislative  and  administrative  functions.  And  if  the 
growth  of  freedom  had  coincided  with  the  continuance  of 
monarchy,  the  administrative  officers  would  have  been, 
more  and  more,  placed  under  legislative  restraints.  In 
that  case  there  would  have  been  no  necessity  for  a  system 
of  contradictions  between  the  Constitution  and  the  laws. 
It  was  because  these  attempts  at  legislative  restrictions 
upon  the  monarch  and  the  ministers  proved  feeble  and 
ineffective  that  the  wholly  new  and  unheard-of  way  of 
securing  ministerial  responsibility  was  found  in  the 
modern  Cabinet,  chosen  and  removed  by  the  will  of  the 
nation  expressed  at  a  general  election.  At  this  parting 
of  the  ways,  the  legislature,  notwithstanding  the  parlia- 
mentary triumph  in  the  Great  Revolution,  succumbed  to 
the  administrative  agencies  created  by  Plantagenets  and 
Tudors,  and  preserved  by  Stuarts.  Failing  to  secure 
liberty  at  the  hands  of  the  legislature,  the  nation,  by  a 
slow  process  of  establishing  precedents  and  arriving  at 
understandings,  either  without  law  or  contrary  to  law, 
has  created  out  of  the  King's  ministers  its  most  effective 
agency  of  free  government.  The  nation  now  practically 
chooses  the  Prime  Minister  and  the  Cabinet,  and  these 
exercise  in  the  name  of  the  nation  full  executive  and 
legislative  powers.  By  refusing  or  failing  to  act  when 
the  time  served,  the  Parliament  as  a  legislative  body  was 
doomed  to  act  in  subordination  to  the  Cabinet. 


CHAPTER  XXXII 

THE   COMPOSITION  OF  POLITICAL  PARTIES 

rriHE  fact  that  both  Whigs  and  Tories  united  in  the 
-*-  Act  of  Settlement  passed  the  year  before  the  death 
of  William  III.  may  fairly  raise  the  question  why  the 
ruling  classes  should  continue  to  divide  themselves  into 
two  political  parties.  Certainly  the  old  issue  about  the 
high  prerogatives  of  the  Crown  no  longer  existed,  or,  at 
least,  was  in  abeyance  at  the  time.  The  Whig  policy  of 
toleration  for  Protestant  Dissenters  had  been  in  part 
adopted  early  in  the  reign  of  William,  and  was  no  longer 
an  issue.  Both  Whigs  and  Tories  were  always  Protestant. 
They  were  equally  at  enmity  with  the  policy  of  the 
King  of  France.  If  we  are  compelled  to  justify  the  con- 
tinued existence  of  political  parties  solely  on  the  ground 
of  actual  political  issues,  we  are  obliged  many  times  to 
confess  that  the  parties  ought  not  to  exist.  At  the  close 
of  William's  reign  there  were  no  important  issues  between 
the  parties,  but  their  leaders  felt  that  their  own  personal 
and  political  interests  were  at  variance.  They  were  in 
the  habit  of  working  against  each  other  in  politics.  The 
"  spoils  of  office  "  had  a  tendency  to  keep  up  the  division 
into  parties  irrespective  of  any  differences  in  political 
policy.  During  the  first  part  of  William's  reign  he  gave 
offices  to  members  of  both  parties,  but  later  he  found  it 
more  convenient  to  give  the  offices  to  Whigs,  and  votes 
in  the  House  of  Commons  were  secured  by  means  of  offices 

327 


328      GROWTH   OF  THE   ENGLISH   CONSTITUTION    chap,  xxxii 

and  pensions.  Only  those  received  favours  who  would 
consent  to  act  with  the  Whig  party.  This  fact  alone 
tended  to  unite  all  opposition  to  the  polic}^  of  the  govern- 
ment under  the  leadership  of  the  Tory  statesmen.  The 
disfavour  with  which  William's  government  was  regarded, 
notwithstanding  the  liberal  use  of  patronage,  caused  the 
House  of  Commons  to  pass  into  the  hands  of  the  Tories 
during  the  last  four  years  of  his  reign. 

The  modern  Cabinet  system  could  never  have  come 
into  existence  if  permanent  political  parties  had  not  pre- 
ceded its  development.  It  will  help  us  to  understand 
how  the  parties  became  permanent  if  we  notice  the  classes 
found  in  each  of  the  two  parties  at  the  death  of  William, 
and  compare  them  with  the  ancient  classes  and  factions. 

The  leaders  of  the  Whig  party  were  chiefly  from  among 
the  great  land-holders  of  England.  These  became  known 
as  the  great  Whig  families.  Generations  of  men  were 
born  Whigs.  Their  estates  were  Whig  possessions  and 
descended  to  Whigs.  It  is  necessary  to  go  back  a  long 
way  in  English  history  to  find  a  time  when  the  few  great 
land-holders  held  so  prominent  a  place  in  politics  as  did 
the  Whig  proprietors  of  the  time  of  the  last  of  the 
Stuarts.  Such  times  there  were  before  the  Wars  of  the 
Roses,  and  during  that  struggle  the  landed  proprietors 
fought  and  destroyed  each  other.  The  early  Tudors 
carried  forward  the  work  of  humiliating  and  effectively 
destroying  the  political  leadership  of  the  great  landed 
proprietors.  In  the  time  of  Elizabeth  and  the  early 
Stuarts  the  great  proprietors  stood  with  Crown  and 
bishops  against  the  claims  of  the  lawyers,  the  country 
gentlemen,  and  the  middle-class  folk  as  represented  in  the 
House  of  Commons.  In  the  time  of  the  Civil  War  a 
large  proportion  of  the  middle  classes  who  had  given  sup- 
port to  the  parliamentary  contention  leading  up  to  the 
War,  united  their  forces  with  the  Cavaliers.     Especially 


CHAP,  xxxii    COMPOSITION  OF  POLITICAL  PARTIES  329 

is  this  true  of  the  country  gentlemen  and  the  clergy  of 
the  Established  Church. 

Upon  the  restoration  of  Charles  II.  the  political  aspira- 
tions of  the  towns  and  cities  were,  for  the  time,  crushed. 
Charles  II.  and  James  II.  could  destroy  the  ancient  char- 
ters of  towns  and  cities,  beginning  with  that  of  London, 
and  could  change  their  voting  constituencies  from  Whigs 
to  Tories  and  from  Protestant  Tories  to  Catholic.  But 
these  same  kings  could  not  protect  the  Dissenters,  who 
made  up  a  large  part  of  the  population  of  towns  and  cities, 
from  the  cruel  persecutions  of  a  House  of  Commons  com- 
posed of  country  gentlemen,  representing  in  its  policy 
towards  Dissenters  a  narrow  and  bigoted  Church.  The 
commercial  classes  in  towns  and  cities  were  in  need  of 
powerful  friends  to  protect  their  commercial  interests 
against  the  arbitrary  interference  of  tyrannical  kings  ; 
and  the  Dissenters  in  the  towns  were  equally  in  need  of 
friends  to  protect  them  against  the  lawful  oppressions  of 
a  bigoted  Parliament.  Both  found  their  friends  in  a  few 
great  land-holders  led  by  the  Earl  of  Shaftesbury. 

The  formation  of  the  Whig  party  may  be  viewed  as 
a  sort  of  restoration  to  the  great  landed  proprietors  of 
the  independent  political  leadership  which  they  had  lost 
in  the  Wars  of  the  Roses.  These  lords  became  the 
leaders  of  those  in  the  nation  who  felt  themselves  most 
aggrieved ;  that  is,  the  Dissenters  and  the  wealthier 
classes  in  towns  and  cities.  The  Whig  party  thus  be- 
came the  means  of  uniting  in  a  common  political  organiza- 
tion classes  which  had  in  former  times  been  farthest 
apart.  The  great  lord  became  the  patron  and  leader  of 
the  radical  in  politics.  The  rank  and  file  of  the  party 
were  traders  and  townsfolk.  Only  that  part  of  the  rural 
population  was  Whig  which  was  under  the  immediate  con- 
trol of  the  Whig  landlords. 

The  Tory  party  was  composed  of  elements  much  more 


330     GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xxxii 

homogeneous.  It  should  not  be  understood  that  none  of 
the  great  landed  proprietors  were  members  of  the  Tory 
party.  During  the  reign  of  William  III.  a  majority  of 
the  members  of  the  House  of  Lords  were  Whigs,  but  a 
goodly  number  were  Tories,  and  they  were  naturally  the 
leaders  of  their  party.  But  the  great  body  of  the  party 
was  made  up  of  the  smaller  landed  proprietors  and  the 
clergy  of  the  Established  Church.  The  upheaval  of  the 
more  popular  element  of  the  nation  under  the  leadership 
of  Oliver  Cromwell  had  resulted  in  a  division  of  the 
middle  classes  who  had  before  the  Civil  War  borne  the 
brunt  of  resistance  to  royal  encroachments.  One  half  of 
this  middle-class  element  found  itself  after  the  Restoration 
in  the  Whig  party  under  the  leadership  of  certain  great 
lords  ;  while  the  other  half  was 'in  the  Tory  party  under 
the  leadership  of  other  great  lords. 

It  will  be  seen  that  the  rank  and  file  of  both  of  the 
political  parties  were  composed  of  the  middle-class  folk 
which  gained  political  coherency  during  the  time  of  the 
Tudor  monarchy.  This  middle  class  may  be  described 
in  two  divisions.  There  were,  first,  the  country  gentle- 
men, or  squirarchy,  and  they  nearly  always  had  the  hearty 
cooperation  of  the  country  parsons.  In  the  second  part 
were  the  townspeople,  —  merchants,  manufacturers,  and 
those  learned  in  the  law.  The  various  elements  of  the 
middle  class  both  in  town  and  country  were  represented 
in  the  House  of  Commons,  and  made  up  the  party  of 
resistance  to  the  first  Stuart  monarchs. 

Let  it  be  remembered  that  there  was  in  the  parlia- 
mentary party  before  the  Civil  War  no  element  which 
could  in  any  proper  sense  be  called  popular.  Viewed 
with  the  modern  democratic  perspective,  each  part  was 
narrow  and  privileged.  The  battles  waged  by  the  House 
of  Commons  against  the  claims  of  James  I.  and  Charles  I. 
were  contests   for  the  maintenance  of  privileges ;    they 


I 


CHAP.  XXXII      COMPOSITION  OF  POLITICAL  PARTIES  331 

were  not  contests  for  liberty  in  the  modern  sense.  When, 
in  the  heat  of  the  conflict  with  Charles  I.  just  before  the 
beginning  of  the  eleven  years  of  tyranny,  one  of  the 
leaders  proposed  that  they  should  champion  the  cause  of 
the  ordinary  tax-payer  against  the  King's  arbitrary 
exactions,  the  proposition  was  rejected. ^  The  party  pre- 
ferred to  follow  the  beaten  track  and  to  put  forward  the 
claim  for  privileged  exemptions  as  members  of  Parlia- 
ment. 

At  the  meeting  of  Parliament  in  1640  the  parliamentary 
party  was  still  distinctly  a  party  of  privilege.  The  most 
easily  observed  division  in  this  old  parliamentary  party 
which  admits  of  definite  date  is  that  which  occurred  on 
the  eve  of  the  Civil  War  in  1641.  At  that  time  the  more 
conservative  element  in  the  party  went  with  the  King, 
and  it  may  be  said,  without  any  straining  of  language, 
that  ever  since  that  date  there  has  existed  a  distinctively 
conservative  party  devoted  to  the  maintenance  of  the 
Crown,  the  Church,  and  all  the  ancient  stable  institutions. 
The  Civil  War  and  the  Commonwealth  did  not  result  in 
the  creation  of  a  corresponding  radical  party,  but  the 
ideas  and  doctrines  which  have  since  given  rise  to  a 
radical  party  did  find  expression  during  that  period  in 
such  form  as  to  affect  profoundly  the  mind  of  the  nation. 
There  arose  powerful  sects  which,  if  they  could  have  had 
their  way,  would  have  destroyed  all  ancient  ecclesiastical 
institutions.  Democrats  arose  who  would  have  brought 
to  naught  venerable  political  institutions ;  and  books 
were  written  boldly  advocating  the  republican  form  of 
government. 

With  the  restoration  of  the  monarchy,  men  of  radical 
opinions  were  left  wholly  powerless  in  the  hands  of  a 
hostile  Parliament.  There  was  no  radical  party,  and 
no  effective  organ  of  expression.      The  poor  Dissenters 

1  Gardiner,  Tlie  Personal  Government  of  Charles  /.,  Vol.  I.,  p.  83. 


332      GROWTH  Ol'   TIlE   ENGLISH   CONSTITUTION    cttAP.  xxxit 

were  so  horrified  at  the  thought  of  being  patronized 
by  a  popish  king  that  they  preferred  the  lawful  per- 
secution of  Parliament  rather  than  the  acceptance  of 
such  royal  favours.  The  radicals  could,  however,  accept 
the  patronage  of  the  great  Whig  leaders.  But  the  Whig 
leaders  were  not  themselves  radicals ;  they  had  no  radi- 
cal tendencies,  nor  were  their  views  and  tendencies  one 
whit  more  democratic  than  were  those  of  the  Tories.  If 
they  gained  greater  moral  support  from  men  of  advanced 
opinions  than  did  the  Tories,  this  arose  from  the  mere 
accident  of  the  division  of  political  interests  among  the 
ruling  classes.  Though  the  rigorous  execution  of  the 
persecuting  statutes  against  Dissenters  and  Catholics 
ceased  when  the  Whigs  got  control  of  the  government, 
yet  those  laws  were  not  repealed  until  nearly  a  hundred 
and  fifty  years  after  the  origin  of  the  Whig  party. 

Looking  again  at  the  two  parties  as  they  appeared  in 
the  time  of  Queen  Anne,  it  will  be  seen  that  in  respect  to 
the  quality  of  homogeneity  the  Tories  enjoyed  a  decided 
advantage  in  their  constituency.  The  squirarchy,  of  which 
the  party  was  largely  composed,  had  been  wont  to  act  to- 
gether in  politics  for  many  generations.  It  was  the  most 
stable  element  in  the  parliamentary  party  before  the  Civil 
War,  and  after  the  war  this  class  was  reinforced  by  the 
greater  part  of  the  clergy  of  the  Established  Church,  all 
being  led  by  certain  great  Tory  families.  The  Whigs, 
on  the  other  hand,  were  dependent  for  support  upon  the 
more  aggressive  and  changeful  classes  of  tradesfolk,  while 
the  great  body  of  the  people  had  no  share  in  the  govern- 
ment and  did  not  belong  to  either  party. 


CHAPTER  XXXIII 

OTHER   ACTS  FOLLOWING  THE  EEYOLUTION 

A  T  the  time  of  the  Act  of  Settlement,  about  one-twen- 
-^--^  tieth  of  the  adult  men  of  England  were  Tories ; 
about  one-twentieth  were  Whigs  ;  the  remaining  nine- 
tenths  were  neither  Whigs  nor  Tories,  but  were  simply 
the  people  to  be  governed  and  to  furnish  the  revenues  to 
support  the  government. 

It  is  impossible  to  decide  whether,  after  permanent  po- 
litical parties  have  once  come  into  being,  the  continued 
existence  of  party  division  arises  from  the  fact  of  con- 
tinued differences  of  opinion  about  the  policy  of  the  gov- 
ernment, or  whether  the  men  of  the  two  parties  cherish 
different  political  opinions  simply  because  the  parties 
exist.  From  the  time  of  the  flight  of  James  II.  there 
were  always  some  in  England  who  wanted  him  to  come 
back  and  again  be  their  king.  There  were  even  states- 
men in  the  service  of  William  who  contemplated  the 
possibility  of  such  an  event,  and  took  measures  to  secure 
their  own  safety  if  it  should  happen.  Some  of  these  were 
Whigs  ;  probably  a  larger  number  were  Tories.  In  the 
nature  of  the  case,  the  Tory  party  had  to  bear  the  blame 
of  Jacobitism  in  England.  The  party  whose  very  origin 
grew  out  of  a  struggle  to  prevent  the  crowning  of  James 
II.  would  not  be  likely  to  take  the  lead  in  an  effort  to 
restore  him.  When  James  died,  and  Louis  XIV.  acknow- 
ledged his  son  as  James  III.,  there  were  still  a  few  Jaco- 

333 


834    GROWTH  OF  THE   ENGLISH  CONSTITUTION    chap,  xxxiii 

bites  in  England.  It  was  simple,  ordinary  politics  for 
the  Whigs  to  take  advantage  of  this  fact  and  to  strive  to 
bring  the  Tory  party  into  disrepute  by  accusing  all  Tories 
of  being  Jacobites.  When  the  Tories  found  from  experi- 
ence that  even  with  a  Tory  queen  for  a  ruler  they  were 
in  large  part  thrust  out  of  office  by  their  political  enemies 
and  were  forced,  whether  or  no,  to  bear  the  odium  of  being 
Jacobites,  there  was  a  strong  tendency  for  the  party  to 
look  with  favour  upon  the  restoration  of  the  Stuarts.  If 
foreign  rulers  should  succeed  Anne,  the  Tories  feared  that 
the  triumph  of  their  political  enemies  would  be  still  more 
complete.  It  would  seem  then  that  the  revival  of  Jaco- 
bitism  in  the  Tory  party  during  the  reign  of  Queen  Anne 
is  due  largely  to  the  mere  fact  of  the  existence  of  the 
parties.  The  identification  of  Toryism  with  Jacobitism 
at  the  death  of  the  Queen  caused  the  government  of  Eng- 
land to  pass  into  the  hands  of  Whigs,  where  it  remained 
for  half  a  century. 

There  are  two  or  three  acts  of  the  time  of  William  III., 
preceding  the  Act  of  Settlement,  which  throw  light  upon 
the  development  of  the  modern  Constitution.  The  laws 
removing  some  of  the  disabilities  of  the  non-Catholic  Dis- 
senters have  been  already  referred  to.  It  is  not  the  Eng- 
lish way  to  do  a  righteous  thing  outright,  but  rather  to 
come  to  the  righteous  end  by  indirection.  The  laws 
against  Dissenters  were  not  repealed,  but  they  were  made 
less  stringent.  The  Dissenters  were  put  in  the  way  of 
growing  into  liberty  by  custom  or  by  neglect. 

In  like  manner,  the  great  constitutional  principle  of 
the  freedom  of  the  press  was  allowed  to  drift  into  English 
law  without  its  being  clear  to  any  one  just  how  it  came 
about.  Before  the  Civil  War,  the  press  had  been  placed 
under  restraint  by  royal  prerogative ;  that  is,  by  Orders  in 
Council.  During  the  time  of  the  Long  Parliament  and 
of   the   Commonwealth  the   restriction  of   the  press  had 


CHAP.  XXXIII    OTHER  ACTS   FOLLOWING   REVOLUTION  335 

been  continued  by  executive  order.  While  Charles  II. 
ruled,  the  press  was  under  strict  surveillance  by  act  of 
Parliament ;  but  the  act  thus  restricting  the  right  to 
print  took  the  form  of  licenses  for  a  term  of  years.  At 
the  end  of  the  term  the  license  was  renewed.  In  1694 
the  statute  for  licensing  expired,  and,  apparently  without 
a  clear  knowledge  of  what  was  being  done,  the  press  be- 
came free,  or  was  permitted  to  drift  in  the  direction  of 
freedom. 

Another  illustration  of  the  English  method  of  securing 
a  great  constitutional  result  by  an  indirect  process  is  seen 
in  the  Mutiny  Act  of  1689.  In  that  year  a  serious  mutiny 
occurred  in  the  English  army,  and  it  was  alleged  that, 
according  to  a  provision  in  the  Petition  of  Right,  the  Ex- 
ecutive had  no  power  to  punish  by  martial  law.  Parlia- 
ment passed  a  statute  conferring  this  power  for  a  term  of 
six  months.  Since  then  Parliament  has  been  accustomed 
to  renew  this  statute  annually  ;  and  by  this  method,  and 
by  the  habit  of  voting  supplies  annually,  the  annual  as- 
sembling of  Parliament  is  secured,  and  the  discipline  of 
the  army  is  thus  made  to  depend  upon  the  will  of  Parlia- 
ment. The  old  Triennial  Act  of  the  Long  Parliament 
required  the  King  to  call  a  session  of  Parliament  at  least 
once  in  three  years.  After  annual  meetings  were  made 
sure  through  the  means  stated  above,  a  new  Triennial  Act 
was  passed  requiring  that  Parliament  should  be  dissolved 
at  least  once  in  three  years.  In  America  the  fixing  of 
the  date  of  the  election  of  members  of  the  Legislature  is 
viewed  as  an  essential  feature  of  the  written  Constitution. 
No  such  notion  can  be  attached  to  a  parliamentary  statute 
regulating  the  time  of  parliamentary  elections.  In  1716 
a  Parliament  prolonged  its  own  existence  four  years  by 
changing  the  Triennial  Act  to  a  Septennial  Act.  This 
later  act  is  still  in  force,  but  it  may  be  changed  at  any 
time  by  act  of  Parliament. 


336     GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xxxiii 

These  various  acts  were  passed  during  the  earlier 
years  of  the  reign  of  William  III.  Just  before  his  death 
there  occurred  an  incident  which  throws  light  upon  the 
current  views  of  the  members  of  Parliament  respecting 
their  relation  to  their  own  constituents.  The  people  of 
Kent  were  living  in  fear  of  an  invasion  from  the  French 
army  and  sent  a  petition  to  Parliament  requesting  the 
members  to  vote  supplies  for  the  defence  of  the  country. 
The  members  of  the  House  held  that  a  petition  of  this 
sort  was  an  undue  interference  with  their  privileges  ;  that 
their  constituents  had  exhausted  their  duty  when  they 
had  elected  the  members.  The  men  who  signed  the 
petition  were  therefore  arrested  and  thrown  into  prison 
by  order  of  the  House  of  Commons.  The  House  of 
Commons  had  long  ago  vindicated  its  right  to  originate 
a  vote  of  supplies  as  against  the  House  of  Lords.  By 
imprisoning  the  Kentish  petitioners  the  Commons  resented 
interference  on  this  subject  even  by  the  men  who  elected 
them.  We  entirely  lose  the  point  of  this  Kentish  case 
if  we  do  not  carefully  distinguish  it  from  a  movement 
originating  in  the  unrepresented  English  nation.  It  was 
in  no  sense  a  popular  movement  which  the  House  resented. 
The  Kentish  petitioners  who  were  sent  to  jail  were  of  the 
wealthy  class  who  had  a  right  to  vote  for  members  of 
Parliament.  One  who  is  accustomed  to  note  the  work- 
ings of  the  present  English  Constitution  cannot  fail  to 
perceive  that  it  differs  essentially  from  the  Constitution 
at  the  time  of  the  Kentish  petition  and  the  Act  of 
Settlement. 

The  general  impression  made  by  the  legislation  of  the 
time  of  William  III.  is  that  the  Houses  of  Parliament 
were  becoming  absolute.  They  disposed  of  the  Crown 
at  will ;  they  were  most  emphatic  in  the  assertion  of  a 
control  over  the  army  ;  they  legislated  as  if  they  intended 
to  control  the  King's  ministers ;  and  the  one  House  which 


CHAP.  XXXIII     OTHER  ACTS  FOLLOWING  REVOLUTION  337 

may  be  suspected  of  a  tendency  to  subordinate  its  action 
to  the  wishes  of  its  constituents  vindicated  its  independ- 
ence by  imprisoning  such  of  those  constituents  as  presumed 
to  ask  the  House  to  act  in  a  certain  way.  It  is  through 
the  mystery  of  the  Cabinet  system  that  this  same  Parlia- 
ment came  to  act,  first  in  subordination  to  the  ministers 
of  the  Crown,  and  afterwards  in  subordination  to  a  Cabi- 
net whose  membership  is  practically  determined  by  the 
voters  of  a  fully  represented  nation.  The  Cabinet  system 
arose  because  the  two  Houses  failed  to  do  the  things  which 
they  undertook  to  do.  Though  endeavouring  to  restrain 
the  King's  ministers,  they  suffered  the  statutes  directed  to 
this  end  to  lapse  or  to  become  ineffective. 


CHAPTER  XXXIV 

ORIGIN  OF   THE   CABINET 

n~^HE  Cabinet  is  the  most  thoroughly  English  of  all  Eng- 
-^  lish  institutions  ;  it  is  the  core  of  the  modern  Consti- 
tution ;  its  explanation  is  an  explanation  of  the  essential 
features  of  the  Constitution.  It  is  not  really  known  just 
when  the  Cabinet  originated,  or  just  what  it  is.  As  soon  as 
an  expounder  of  the  English  Constitution  begins  to  use 
words  with  exact  and  unchanging  meaning,  he  begins  to  be 
a  teacher  of  positive  error.  A  fully  developed  democratic 
Cabinet  such  as  was  described  in  the  first  part  of  this 
work  does  not  yet  exist,  because  the  English  government 
still  lacks  something  of  being  democratic.  Nothing  is 
gained  in  trying  to  trace  the  modern  democratic  Cabinet 
to  an  earlier  date  than  1832.  If  we  mean  by  the  word 
"  Cabinet "  a  few  of  the  chief  officers  of  the  State,  accustomed 
to  consult  in  secret  on  matters  of  State,  then  there  never 
Avas  a  time  when  the  Crown  was  without  a  Cabinet.  The 
word  "  Cabinet "  was  probably  first  used  to  designate  the  few 
members  of  the  King's  Council  whom  King  James  I.  was 
accustomed  to  consult  in  secret.  The  term  "  Cabal "  was 
applied  to  a  like  body  before  and  during  the  time  of 
Charles  II.,  and  the  secret  advisers  of  William  III.  re- 
ceived at  one  time  the  appellation  of  "Junto." 

It  will  throw  light  upon  the  origin  of  the  Cabinet  if  we 
first  raise  the  question,  How  did  the  other  institutions  now 
associated  with  the  high  powers  of  State  originate  ?    These 

338 


CHAP.  XXXIV  ORIGIN   OF  THE   CABINET  339 

institutions  are  the  Crown,  the  House  of  Lords,  the  House 
of  Commons,  the  Privy  Council,  the  three  divisions  of  the 
High  Court  of  Justice,  and  the  Convocation  of  the  Clergy. 
We  can  fix  with  tolerable  definiteness  a  time  when  some 
of  these  terms  were  first  used,  but  it  is  not  possible  to 
give  a  precise  statement  of  the  time  and  manner  of  the 
origin  of  the  institution  which  the  words  designate.  The 
origin  of  English  institutions  is  shadowy  and  indefinite. 
The  Crown,  or  the  Kingship,  grew  up  gradually  out  of 
the  wars  of  the  ancient  tribes.  With  the  Crown  there 
was  always  associated  an  assembly  of  influential  men  who 
had  a  share  in  the  government.  Out  of  this  one  assembly 
have  been  evolved  the  various  governmental  institutions. 
Freeman  says  that  the  House  of  Lords  is  a  continuation 
of  the  ancient  national  assembly.  We  have  seen  that 
before  there  was  a  House  of  Lords  called  by  that  name, 
the  High  Courts  of  Justice  had  been  formed  out  of  the 
national  assembly.  This  was  not  done  at  any  one  time 
by  a  conscious  act  of  constitution-making  ;  but  gradually 
portions  of  the  assembly  were  set  apart  for  special  judi- 
cial and  administrative  business.  In  course  of  time  the 
smaller  groups  of  officers  came  to  be  occupied  with  judi- 
cial business  alone,  and  thus  were  formed  the  high  courts 
of  the  realm. 

As  stated  in  former  chapters,  the  classes  who  composed 
the  House  of  Commons  were  at  one  time  and  another 
attached  to  the  'ancient  national  assembly.  And  when 
these  representative  members  were  added  to  the  national 
assembly,  it  is  not  known  whether  they  met  and  acted 
with  the  old  assembly,  or  whether  they  met  separately, 
forming  two,  three,  or  four  assemblies  ;  or  whether  it 
was  sometimes  one  way  and  sometimes  another.  It  is 
known,  however,  that  sometime  before  or  during  the 
earlier  part  of  the  reign  of  Edward  III.  the  newer  mem- 
bers had  formed  the  habit  of  meeting  by  themselves,  and 


340        GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xxxiv 

were  called  the  House  of  Commons.  This  made  it  desir- 
able to  have  a  special  name  for  the  older  part  of  the  as- 
sembly, and  the  name  chosen,  was  House  of  Lords. 

An  American  would  naturally  suppose  that  after  the 
old  national  assembly  had  become  merged  into  the  two 
Houses  of  Parliament,  the  old  assembly  in  the  old  forms 
would  entirely  cease.  But  in  England  a  governmental 
institution  does  not  thus  terminate  its  existence.  It  may 
wear  out  with  the  lapse  of  time,  but  it  comes  to  no  sud- 
den end.  It  would  seem  that  after  the  representative  Par- 
liament was  fully  inaugurated  there  were  still  occasional 
meetings  of  the  old  assembly  according  to  the  older  forms. 
In  course  of  time  the  full  meeting  of  the  old  council 
disappears,  and  all  that  is  left  is  the  smaller  meeting 
called  the  Common  Council  or  the  Ordinary  Council. 
This  was  composed  of  the  high  administrative  and  judi- 
cial officers  of  State.  It  should  be  observed  that  the  King 
with  any  one  of  these  various  bodies  exercised  sovereign 
power.  That  is,  the  King  with  the  old  assembly  which 
became  the  House  of  Lords  was  sovereign  ;  and  the  King 
with  a  smaller  body,  composed  in  whole  or  in  part  of 
members  of  that  assembly,  was  likewise  sovereign.  When 
a  committee  of  justices  came  to  decide  cases  at  law  with- 
out the  King  they  were  not  sovereign,  but  an  appeal  was 
reserved  to  a  higher  sovereign  body.  It  should  also  be 
observed  that  there  was  no  sharp  line  of  distinction  be- 
tween legislative,  executive,  and  judicial  powers. 

At  first  a  petition  which  had  been  presented  by  the 
House  of  Commons  and  granted  by  the  King  became  a 
law.  It  took  a  long  time  to  establish  the  understanding 
that  it  required  the  King  and  the  two  Houses  of  Parlia- 
ment to  make  an  act  binding.  Even  after  this  under- 
standing had  been  attained  it  was  still  possible  for  the 
King  to  legislate  by  the  use  of  the  older  Council  by  means 
of  proclamation  and  dispensation.     Until  James  11.  was 


cttAP.  xxxiV  ORIGIN  OF  THE   CABINET  341 

driven  out  of  England,  the  King  and  his  judges,  and  his 
chosen  tools  in  the  Council,  could  change  a  law  of  Par- 
liament. In  1872,  when  Mr.  Gladstone's  Ministry  had 
failed  to  carry  a  law  abolishing  the  purchase  of  offices  in 
the  army,  the  abuse  was  abolished  by  an  Order  in  Council. 
This  was  simply  exercising  the  legislative  power  of  the 
old  national  assembly  now  represented  by  the  Privy 
Council.  The  name  "  Privy  Council "  was  introduced  in 
the  place  of  the  older  term,  "  Ordinary  Council,"  in  the  time 
of  Henry  VI.  The  judicial  business  of  this  Council  is 
also  a  remnant  of  the  original  judicial  power  of  the  King 
in  Council.  We  see  the  same  principles  illustrated  in  the 
judicial  power  of  the  House  of  Lords.  During  the  "high 
monarchy "  period  of  Tudors  and  Stuarts,  the  Council 
held  a  prominent  place  in  the  government. 

When  it  is  said  that  the  English  Cabinet  had  no  defi- 
nite beginning,  but  was  a  gradual  growth,  the  meaning  is 
that  in  this  respect  the  Cabinet  was  quite  in  harmony  with 
other  governmental  institutions.  Various  occasions  have 
been  noticed  when  there  were  attempts  made  to  create 
definite  governmental  institutions  with  precise  powers, 
and  these  attempts  were  seen  to  have  invariably  failed. 
Such  was  the  case  with  the  efforts  made  by  the  Pro  visors 
of  Henry  III.  and  the  Ordainers  of  Edward  II. ;  so  also 
with  Cromwell's  "Instrument  of  Government"  during 
the  Commonwealth.  Custom  has  ever  been  too  strong 
to  admit  of  the  establishment  of  the  hard  and  fast  con- 
stitutional lines  known  to  Americans. 

At  the  time  of  the  Great  Revolution,  the  composition 
of  the  two  Houses  of  Parliament  had  long  been  in  one 
sense  quite  sufficiently  definite.  They  were  composed  of 
so  many  members  chosen  in  a  well-understood  legal  way. 
But  the  relations  of  these  two  Houses  to  each  other  were 
more  shadowy ;  and  especially  were  the  relations  of  the 
•two   Houses  to  the   King   and  the   King's  ministers  as 


342       GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xxxiv 

indefinite  as  could  well  be  imagined.  A  hundred  years 
of  strife  over  this  very  question  had  contributed  little  to 
its  definite  settlement.  The  King  was  still  at  the  head 
of  the  business  of  administration.  Parliament  could  still 
claim  that  it  was  the  duty  of  the  King  and  his  ministers 
to  obey  the  laws.  Charles  II.  and  James  II.  proved  that 
it  was  still  possible  for  kings,  ministers,  and  judges  to 
disregard  the  laws  of  Parliament.  Parliament  could  still 
impeach  ministers,  but  no  way  had  been  devised  for  pre- 
venting the  King  from  filling  their  places  by  others  of 
a  like  disposition. 

A  measure  introduced  by  Sir  William  Temple,  in  1679, 
throws  a  good  deal  of  light  on  the  subject  of  the  King's 
ministers,  and  is  of  especial  interest  in  the  history  of  the 
origin  of  the  Cabinet.  Temple's  plan  was  to  reduce  the 
number  of  members  of  the  Privy  Council,  which  was  fifty  or 
more,  to  thirty,  and  then  to  require  that  all  the  administra- 
tive policy  of  the  Crown  should  be  determined  by  the  delib- 
erations of  this  full  Council,  in  which  each  member  should 
be  free  to  give  advice,  of  which  a  record  was  to  be  made. 
In  matters  pertaining  to  the  separate  departments  the 
advice  of  the  minister  of  the  department  was  to  be  fol- 
lowed, while  in  other  matters  of  general  concern  the  ad- 
vice of  the  greater  number  was  to  be  followed.  One-half 
of  the  Council  was  to  represent  the  administrative  side 
of  the  government,  and  to  be  made  up  of  the  heads  of 
departments ;  the  other  half  was  to  be  composed  of  the 
wealthiest  and  most  influential  members  of  Parliament ; 
his  idea  being  to  harmonize  the  working  of  the  adminis- 
trative and  political  agencies  of  the  government  with  the 
interests  of  the  ruling  classes  of  the  nation.  This  measure 
was  adopted  by  King  and  Parliament.  But  notwith- 
standing his  definite  promise  to  observe  its  requirements, 
Charles  II.  paid  little  attention  to  them,  and  continued 
the  policy  of  consulting  a  few  chosen  ministers  in  secret, 


CHAP.  XXXIV  ORIGIN  OF  THE   CABINET  343 

and  secretly  agreeing  upon  a  policy,  using  meetings  of  the 
Privy  Council  only  so  far  as  they  could  be  relied  upon  to 
ratify  the  secret  policy  of  himself  and  his  trusted  secret 
advisers. 

Comparing  this  measure  of  Temple  with  laws  and  cus- 
toms of  past  generations,  there  appears  to  be  nothing  of 
importance  about  it.  It  is  quite  like  an  act  of  the  gov- 
ernment of  Henry  VI.  when  the  Privy  Council  was  recog- 
nized as  taking  the  place  of  the  older  Ordinary  Council. 
When  the  King,  or  the  government  of  the  day,  could 
without  inconvenience  pack  the  Houses  of  Parliament,  as 
well  as  his  courts  of  every  name,  and  his  entire  Council, 
it  was  but  the  natural  and  easy  thing  for  him  to  follow  a 
policy  similar  to  that  embodied  in  the  measure  of  Sir 
William  Temple.  But  when  the  King  could  no  longer 
pack  Parliaments,  and  when  the  Parliament  and  the 
dominant  classes  in  the  nation  viewed  the  actions  of  the 
King  with  suspicion,  then  a  Council  meeting  in  which  a 
record  was  kept  of  the  advice  given  by  each  member 
became  quite  another  thing,  both  for  the  King  and  for 
the  minister  who  advised  him. 

If  Temple's  measure  had  become  a  permanent  part  of 
the  Constitution,  there  would  have  been  no  place  for  the 
modern  Cabinet  system.  According  to  his  plan  the  Privy 
Council  was  to  be  a  definite,  legal  check  both  upon  the 
King  and  upon  Parliament,  but  the  tendency  of  such  a 
system  would  have  been  to  subordinate  the  administrative 
agents  to  the  legislature.  The  success  of  such  a  system 
would  have  involved  sharp  and  sudden  changes  in  the 
spirit  and  methods  of  Parliament  on  the  one  hand,  and  of 
the  kings  on  the  other.  Such  a  system  could  not  have 
coincided  with  the  rancorous  and  brutal  party  strife  which 
has  characterized  English  politics  during  much  of  the 
time  since  that  date.  It  would  have  involved  a  greater 
restraint  in  the  disposition  to  use  the  power  of  impeach- 


344       GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap. 


XXXIV 


ment  than  had  been  manifest  at  that  date.  In  general, 
the  working  of  Temj^le's  plan  would  have  implied  a 
greater  degree  of  conscious  and  persistent  rationality 
than  had  been  attained. 

Much  has  been  made  of  that  Ministry  of  William  III., 
formed  1695,  in  its  relations  to  the  origin  of  the  Cabinet 
system.  Whigs,  Tories,  and  Trimmers,  or  Compromisers, 
had  taken  part  in  the  crowning  of  William  and  Mary,  and 
William  naturally  chose  his  ministers  from  men  of  various 
political  opinions.  There  was  already  a  majority  of  Whigs 
in  the  two  Houses  of  Parliament,  and  an  election  in  1695 
made  the  House  of  Commons  still  more  strongly  Whig  in 
composition.  At  this  point  William  yielded  to  the  advice 
of  Sunderland,  who  had  been  a  member  of  Sir  William 
Temple's  council,  and  began  to  choose  his  chief  advisers 
from  the  Whig  leaders.  It  is  easy  to  see  in  this  act  much 
more  of  the  modern  Cabinet  system  than  the  act  itself  im- 
plied. It  was  simply  a  device  to  secure  the  more  constant 
support  of  Parliament.  Offices  and  pensions  were  freely 
used  to  secure  votes  for  the  government.  There  was  no 
select  body  of  ministers  who  were  known  as  forming  a 
Cabinet,  in  the  modern  sense.  William,  it  is  true,  habit- 
ually consulted  with  four  or  five  leading  ministers,  as 
former  kings  had  done,  and  these  were  called  the  Junto. 
There  was  no  understanding  that  the  ministers  were 
mutually  responsible  for  each  other's  acts.  Each  minister 
attended  to  the  affairs  of  his  own  office  independently  of 
other  ministers.  William  was  his  own  Foreign  Secretary, 
and  the  King  was  viewed  not  merely  as  the  formal,  but  as 
the  real,  head  of  the  government.  There  is  nothing  to 
indicate  that  any  one  had  any  perception  that  an  im- 
portant change  was  being  wrought  in  the  government  by 
the  choosing  of  the  Whig  Ministry  of  William.  All  there 
is  in  the  act  to  suggest  a  modern  Cabinet  is  that  offices 
were  used  to  secure  votes  in  Parliament,  and  that   by 


CHAP.  XXXIV  ORIGIN   OF   THE   CABINET  345 

taking  the  officers  from  the  same  political  party,  greater 
harmony  was  secured  in  executive  business. 

At  this  time  all  sorts  of  offices  and  pensions  were  used 
for  party  purposes.  There  was  much  alarm  lest  an 
oligarchy  of  office-holders  and  pensioners  should  be  fas- 
tened upon  the  country.  It  was  this  fe^,r  which  led  to 
the  insertion  in  the  Act  of  Settlement  of  a  clause  for- 
bidding officers  and  pensioners  from  holding  seats  in 
Parliament,  and  other  clauses  requiring  ministers  to  give 
advice  in  writing,  while  all  executive  deliberations  were 
required  to  be  in  Privy  Council  with  a  record  kept  of 
the  advice  of  each  member. 

After  a  few  years  the  Junto  Ministry  of  William  became 
unpopular.  Measures  of  the  government  began  to  be  de- 
feated in  the  House  of  Commons.  It  seems  that  at  this 
time  no  one  had  thought  of  the  modern  principle  that  when 
a  Ministry  is  defeated  in  the  House  of  Commons  it  ought 
to  resign.  The  Whig  Ministry  remained  in  office  after 
continued  defeats.  Opposition  to  the  Ministry  increased. 
An  election  occurred  in  1698  which  had  the  effect  of 
increasing  still  further  the  opposition  to  the  government 
in  the  House  of  Commons.  Some  of  the  ministers  re- 
signed. For  a  time  William  resorted  to  a  mixed  Ministry. 
Finally,  after  another  election,  the  House  of  Commons 
became  decidedly  Tory  in  its  composition,  and  William 
was  induced  to  accept  a  Ministry  which  was  chiefly  from 
that  party.  In  the  light  of  what  happened  later  it  is 
easy  to  see  in  these  events  movements  in  the  direction  of 
the  modern  Cabinet. 


CHAPTER  XXXV 

QUEEN   ANNE  AND   THE  CABINET 

"TOURING  the  reign  of  Queen  Anne  the  movements  in 
-*-^  the  Executive  resembled  in  many  respects  those  in 
the  time  of  William  III.  The  Queen,  like  William,  was 
all  the  time  partial  to  a  mixed  Ministry,  and  during  the 
first  few  years  of  her  reign  such  a  Ministry  administered 
the  government.  But  the  exigencies  of  a  great  foreign 
war  which  tended  to  dominate  all  other  issues  led  later, 
as  in  William's  reign,  to  the  establishment  of  a  Whig 
Ministry.  Still  later,  a  turn  in  domestic  politics  caused 
a  change  in  the  House  of  Commons,  and  a  Tory  Ministry 
was  chosen.  It  was  understood  that  as  between  Whigs 
and  Tories,  the  personal  choice  of  the  Queen  favoured 
the  Tories.  She  was  earnestly  devoted  to  the  interests 
of  the  Church,  and  was  unfriendly  to  Dissenters. 
William's  choice  rested  rather  with  the  Whigs,  and  he 
was  favourable  to  toleration. 

The  Duke  of  Marlborough  was  commander  of  the  Eng- 
lish armies  and  leader  of  the  allied  armies  in  the  war 
against  Louis,  until  the  formation  of  the  Tory  Ministry  in 
1710.  Marlborough  had  an  accommodating  conscience, 
and,  to  please  the  Queen  and  to  gain  a  more  complete 
control  over  the  resources  of  the  country,  he  professed 
himself  a  Tory.  He  was  thus  able  to  control  the  Tory- 
Whig  Ministry  of  1702.  About  1705  Marlborough  and 
the  war  party,  finding  their  policy  insufficiently  supported 

346 


CHAP.  XXXV        QUEEN  ANNE   AND   THE   CABINET  347 

by  the  Tories,  began  gradually  to  change  the  personnel  of 
the  Ministry  from  Tory  to  Whig.  In  1708  a  Whig  House 
of  Commons  forced  the  Queen  to  accept  a  pure  Whig 
Ministry,  and  Marlborough  now  declared  himself  a  Whig. 
After  two  years  the  Queen  and  the  Tories  gained  pos- 
session of  the  House  of  Commons  and  formed  a  Tory 
Ministry.  The  Whigs  having  a  small  majority  in  the 
House  of  Lords,  twelve  new  peers  were  created,  and  thus 
the  Tories  gained  both  Houses  of  Parliament. 

It  is  not  easy  to  fix  upon  any  new  and  definite  contri- 
bution to  the  development  of  the  Cabinet  system  in  the 
events  of  the  reign  of  Anne.  Yet  those  events  taken  as  a 
whole  show  a  marked  tendency  on  the  part  of  the  Execu- 
tive to  drift  into  the  hands  first  of  one  political  party 
and  then  of  the  other,  according  as  the  one  or  the 
other  party  had  a  majority  in  the  House  of  Commons. 
The  Queen's  act  in  changing  the  party  majority  of  the 
House  of  Lords  by  the  use  of  the  royal  prerogative  has 
in  recent  years  served  to  suggest  to  the  modern  dem- 
ocratic Cabinet  a  practical  method  for  harmonizing  the 
two  Houses.  Anne  is  accounted  a  weak  monarch,  and 
hence  these  various  changes  and  adjustments  are  held 
to  be  less  the  acts  of  the  Monarch  than  those  of  the 
political  leaders.  Yet  it  will  not  do  to  carry  this  dis- 
tinction between  the  Queen  and  the  leading  ministers 
too  far.  The  Queen  did  have  a  mind  of  her  own  ;  she 
thought  she  was  ruling.  It  was  only  for  a  little  while 
that  she  was  virtually  coerced  into  the  acceptance  of  a 
Whig  Ministry.  The  creation  of  the  new  peers  was 
distinctly  the  act  of  the  Queen. 

Throughout  the  reign  of  Anne  the  two  parties  re- 
mained in  nearly  even  balance.  Notwithstanding  the 
great  war,  party  strife  grew  more  rancorous.  When  the 
Tories  came  into  possession  of  all  the  governmental  offices, 
in  1711,  they  passed  an  act  requiring  members  of  the 


348         GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xxxv 

House  of  Commons  to  be  possessed  of  real  estate  of  the 
value  of  two  hundred  pounds.  The  object  of  this  law  was 
to  make  it  possible  for  the  Tories  to  control  the  House  of 
Commons  perpetually.  The  Whig  party  being  composed 
of  the  great  landowners  who  had  seats  in  the  House  of 
Lords,  and  the  wealthy  trading  classes  in  the  towns  and 
cities,  many  of  whom  owned  no  real  estate,  it  was  believed 
that  that  party  would  be  placed  at  a  decided  disadvan- 
tage by  the  passage  of  such  an  act. 

Having  secured  the  dismissal  of  Marlborough  and 
opened  up  secret  communications  with  Louis,  the  Tories 
brought  the  Whig  war  to  a  close  by  signing  the  treaty  of 
Utrecht.  With  the  Queen  on  their  side  they  had  now  a 
firm  hold  upon  political  power.  But  the  Queen's  health 
was  failing,  and  it  was  understood  that  the  incoming 
house  of  Hanover  would  favour  the  Whigs.  In  this 
emergency  the  leading  Tories  turned  their  thoughts  to 
the  Pretender,  the  son  of  James  II.  If  the  Pretender  had 
consented  to  renounce  the  Catholic  religion  and  accept 
the  Church  of  England  as  by  law  established,  it  would 
not  have  been  a  difficult  matter  to  secure  his  succession. 
His  refusal  to  do  this  brought  division  and  confusion  into 
the  ranks  of  the  Tories.  In  the  midst  of  this  confusion 
and  indecision  Queen  Anne  died,  and  the  Elector  of  Han- 
over was  immediately  proclaimed  king,  as  George  I. 

Before  coming  to  England,  George  I.  removed  the 
Tory  ministers  and  filled  their  places  with  Whigs.  It 
was  his  original  intention  to  take  an  active  part  in  the 
business  of  governing,  but  as  he  was  not  able  to  under- 
stand the  language,  the  business  was  made  exceedingly 
disagreeable  for  him,  and  he  was  induced  to  leave  the 
details  of  administration  in  the  hands  of  his  ministers. 
George  I.  formed  the  habit  of  not  attending  the  Cabinet 
meetings.  It  will  be  observed  that  this  is  of  primary 
importance  in  the  development  of  the  modern  Cabinet 


CHAP.  XXXV        QUEEN  ANNE   AND  THE   CABINET  349 

system.  The  modern  democratic  Cabinet  could  not  have 
arisen  if  the  Monarch  had  continued  to  be  a  part  of  it. 
For  a  period  of  nearly  fifty  years  after  the  death  of  Anne, 
England  was  favoured  with  kings  who  took'  comparatively 
little  interest  in  English  politics,  and  during  that  time 
some  of  the  most  important  and  characteristic  features  of 
the  Cabinet  system  became  firmly  established. 

Contradictory  as  it  may  seem,  this  same  half-century 
which  witnessed  the  establishment  of  the  essential  features 
of  the  Cabinet  system,  also  witnessed  the  continuous  tri- 
umph of  one  political  party.  The  cooperation  of  two  po- 
litical parties  is  necessary  to  the  working  of  the  modern 
English  Cabinet,  but  the  existence  of  two  permanent  polit- 
ical parties  by  no  means  accounts  for  that  system,  nor  does 
it  in  itself  explain  the  origin  of  the  system.  That  which 
above  all  others  needs  an  explanation  in  the  English  Cabi- 
net system  is,  how  it  has  come  to  pass  that  all  the  powers 
of  the  Crown,  all  the  high  prerogatives  of  the  King,  should 
be  preserved  and  made  operative  independently  of  the  per- 
sonal will  of  the  Monarch,  while  the  Monarch  at  the  same 
time  maintains  a  dignified  and  honourable  position.  Dur- 
ing a  greater  part  of  the  reigns  of  the  first  two  Georges 
the  power  of  the  Crown  dominated  the  English  govern- 
ment as  effectively  as  it  did  in  the  time  of  Henry  VIII. 
But  this  power  was  exercised,  not  by  the  King,  but  by  a 
Prime  Minister  and  a  few  chosen  political  friends  whom 
he  was  accustomed  to  meet  in  secret  conference.  With- 
out this  separation  of  the  King  and  his  chief  ministers,  a 
separation  continued  for  a  sufficient  time  to  become  insti- 
tutional, it  is  difficult  to  see  how  the  modern  Cabinet 
could  have  originated. 

The  continued  dominance  of  the  Whig  party  during 
the  reign  of  the  first  two  Hanoverian  monarchs  is  due,  in 
large  part,  to  the  fact  that  there  was  fastened  upon  the 
Tory  party  the  odium  of  keeping  alive  an  effort  to  restore 


350         GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xxxv 

the  Stuart  succession.  The  effective  power  in  the  nation 
was  opposed  to  such  a  restoration,  and  until  the  Tory 
party  could  rid  itself  of  all  suspicion  of  such  an  intention, 
it  was  not  permitted  to  come  into  power.  It  was  fortu- 
nate for  the  development  of  the  Cabinet  system  that  it 
was  the  Tory  party  which  was  subjected  to  this  contin- 
uous strain  of  prolonged  existence  without  office.  The 
Whigs  could  probably  not  have  endured  such  a  strain  at 
that  time.  The  Tory  party  was  compact ;  its  members 
continuously  enjoyed  substantial  power  in  the  manage- 
ment of  the  local  affairs  of  the  counties.  A  party  com- 
posed of  country  gentlemen  and  country  parsons  was  not 
dependent  even  upon  the  hope  of  office  in  order  to  main- 
tain the  party  spirit.  They  could  still  believe  the  .Church 
to  be  in  danger,  and  the  accumulation  of  wealth  in  the 
hands  of  Dissenters  in  towns  and  cities  seemed  to  them 
to  be  reason  enough  for  the  defenders  of  the  ancient  and 
established  order  of  Church  and  State  to  hold  firmly  to- 
gether for  their  political  interests.  The  Tories  of  course 
knew  that  the  Whigs  were  using  the  royal  prerogative  in 
a  corrupt  way  to  keep  themselves  in  power.  But  so  long 
as  this  power  was  exercised  in  a  moderate,  conservative 
way,  so  long  as  the  Church  was  not  attacked,  it  did  not 
seem  the  part  of  wisdom  for  the  Tories  to  favour  a  revo- 
lutionary political  agitation.  The  Tory  doctrine  of  non- 
resistance  doubtless  had  some  tendency  to  keep  them 
quiet  so  long  as  they  were  let  alone. 

While  the  Tories  did  not  need  office  in  order  that  they 
might  hold  together  as  a  party,  so  much  could  not  be  said 
of  the  Whigs.  Their  party  was  made  up  of  diverse  ele- 
ments. The  great  land-holders  who  made  or  controlled 
the  majority  in  the  House  of  Lords  did  not  differ  in  social 
position  from  the  great  body  of  the  Tory  party.  Natu- 
rally their  political  views  differed  little  from  those  of 
their  Tory  contemporaries.     But  in  order   to   gain   con- 


CHAP.  XXXV        QUEEN  ANNE  AND  THE   CABINET  351 

trol  of  the  House  of  Commons,  they  were  forced  to  depend 
largely  upon  the  commercial  classes  in  the  towns  and 
cities.  Thus  the  Whig  party  included  elements  which 
required  a  positive  political  bond  to  keep  them  together. 
If  the  Whig  party  so  soon  after  its  origin  had  been  con- 
signed to  two  generations  of  exclusion  from  office  under 
the  odium  of  treason  to  the  reigning  house,  it  is  difficult  to 
see  how  the  party  could  have  held  together.  The  Tory 
party  survived  this  test  and  was  ready  to  assume  control 
of  the  Government  upon  the  accession  of  George  III. 


CHAPTER  XXXVI 

WALPOLE  AND   THE   CABINET 

O  O  far  as  the  modern  Cabinet  system  admits  of  being 
^  attributed  to  the  genius  of  any  one  man,  that  man  is 
Sir  Robert  Walpole.  It  is  usually  a  fruitless  question  to 
consider  what  would  have  been  the  course  of  history  if  a 
particular  personage  had  been  left  out.  It  certainly 
would  be  most  futile  to  attempt  to  prove  that  the  Cabinet 
system  would  not  have  arisen  if  it  had  not  been  for  Sir 
Robert  Walpole.  Yet  it  was  during  the  leadership  of 
that  statesman,  in  the  time  of  George  I.  and  George  II., 
that  many  of  the  essential  features  of  the  Cabinet  were 
established. 

England  was  now  rid  of  all  the  Stuarts.  There  had 
been  a  hundred  years  of  wrangling  over  the  relations  of  the 
Crown  to  the  two  Houses  of  Parliament  and  to  the  nation. 
Nothing  had  occurred  to  settle  those  questions  finally. 
But  the  new  kings  relied  wholly  upon  an  act  of  Parlia- 
ment for  the  right  to  rule,  and  during  the  greater  part  of 
the  reigns  of  the  first  two  kings  of  the  house  of  Hanover 
there  was  a  disputed  succession,  involving  danger  of  civil 
war,  and  there  was  an  expectation  in  the  minds  of  a  por- 
tion of  the  ruling  class  that  the  Stuarts  would  yet  be 
restored.  The  new  kings  were  unpopular,  and  they  held 
the  allegiance  of  the  nation  through  its  dread  of  violent 
revolution  and  through  the  political  interests  of  the  Whig 
party,  rather  than  through  the  active  loyalty  of  the  peo- 

352 


CHAP,  xxxvi  WALPOLE  AND  THE   CABINET  353 

pie.  We  have,  in  this  period,  an  iUustration  of  continued 
kingly  rule  apart  from  the  kings  ;  that  is,  without  the 
will  of  the  monarch  being  made  prominent.  There  is  a 
sort  of  institutional  separation  between  the  power  of  the 
Crown  as  represented  by  the  monarch  and  that  power  as 
represented  by  the  ministers. 

In  the  long  rule  of  Sir  Robert  Walpole  there  is  much 
to  remind  us  of  the  type  of  statesmanship  usually  attrib- 
uted to  the  Tudor  rulers.  The  three  great  Tudors  lived 
in  constant  dread  of  certain  powers  in  the  nation.  The 
great  concern  of  Walpole  was  to  keep  the  nation  quiet, 
lest  ruin  should  come  upon  his  government  and  the 
country.  The  Tudors  respected  the  nation  far  more 
than  they  respected  the  Parliament ;  yet  their  respect  for 
the  Parliament  showed  a  steady  increase.  It  is  likely 
that  Walpole  feared  and  respected  the  unrepresented 
nation  more  than  he  did  Parliament,  despite  his  know- 
ledge that  he  was  wholly  dependent  upon  Parliament  as 
an  agency  of  government.  With  weak  and  dissolute  mon- 
archs,  reverenced  by  no  class  in  the  nation,  with  the  courts 
of  law  made  independent  of  the  Executive  by  a  statute  of 
William  III.,  making  the  judges  irremovable  by  the 
King,  it  was  out  of  the  question  for  the  minister  to  think 
of  governing  by  other  than  parliamentary  agencies.  By 
the  use  of  royal  prerogative,  Henry  VIII.  secured  a  sub- 
servient House  of  Commons,  and  by  its  means  humiliated 
the  House  of  Lords  and  made  himself  absolute.  By  the 
combined  use  of  royal  prerogative  and  personal  influence 
Walpole  secured  a  subservient  House  of  Commons,  and 
for  twenty-one  years  made  his  own  will  the  ruling  force 
in  the  government. 

It  is  easy  to  carry  too  far  this  analogy  between  the  rule 

of  Walpole  and  that  of  the  Tudors.     A  century  of  fierce 

debate    and    revolutionary    movements    had    intervened. 

These  had  forced  the  various  classes  to  contemplate  a 

2a 


354       GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xxxvi 

segregation  of  political  institutions,  such  as  would  have 
occurred  to  no  one  in  the  Tudor  century.  The  people 
had  been  obliged  to  think  of  the  two  Houses  apart  from 
the  King.  The  courts  of  law,  the  great  bulwark  of  royal 
prerogative,  and  the  last  recourse  of  James  II.  before  he 
was  driven  from  England,  had  been  taken  out  of  the 
hands  of  the  King  twenty  years  before  Walpole  became 
Prime  Minister.  The  peculiar  relations  of  William  III. 
and  Anne  to  the  ministers  of  State  had  tended  to  create, 
in  the  minds  of  the  ruling  classes,  a  new  distinction 
between  the  person  of  the  Monarch  and  the  efficient 
Executive.  This  distinction  was  still  farther  emphasized 
when  Walpole  became  the  first  minister  of  a  despised  and 
foreign  king.  Walpole  is  to  be  compared  to  the  Tudors 
in  that  he  secured  to  himself  all  that  was  left  of  royal  pre- 
rogative, and  by  means  of  it  made  himself  master  of  Eng- 
land, and  ruled  for  a  whole  political  generation.  He  got 
hold  of  the  administrative  agencies  of  government,  which 
had  been  perfected  by  the  Tudors,  and  had  survived  the 
conflicts  of  the  Stuarts.  Through  them  he  organized  an 
Executive  institution,  which  has  since  gathered  to  itself 
all  the  powers  of  the  Crown,  and  has  continued  to  make 
the  two  Houses  mere  subordinate  agencies  of  government, 
while  at  the  same  time  the  members  of  the  Executive  hold 
office  at  all  times  subject  to  the  approval  of  one  of  the 
two  Houses. 

Wolsey  was  for  a  time  the  first  minister  of  Henry 
VIII. ,  but  the  will  of  Henry  ruled  Wolsey.  Later, 
Thomas  CromAvell  was  Henry's  most  efficient  minister ; 
but  both  Wolsey  and  Cromwell  were  sacrificed  to  the 
King's  desires.  Walpole  and  his  Whig  supporters  were 
not  in  the  same  way  subject  to  the  will  of  the  Sovereign ; 
they  could  at  any  time  have  secured  the  banishment  of 
the  house  of  Hanover.  Walpole  was  in  a  certain  sense 
as  absolute  as  was  ever  Henry  VIII.     After  all  the  con- 


CHAP.  XXXVI  WALPOLE   AND  THE   CABINET  355 

flicts,  after  all  the  analyses  of  government  into  separate 
and  apparently  conflicting  institutions,  harmony  of  action 
was  finally  secured  by  making  all  the  agencies  of  govern- 
ment yield  to  the  guidance  of  a  single  will. 

Henry  VIII.  used  his  packed  House  of  Commons  to 
overawe  the  House  of  Lords.  Walpole  found  in  his 
House  of  Lords  a  constant  and  effective  supporter. 
Anne  had  packed  the  House  of  Lords  in  order  to  secure 
its  support  for  the  Tory  Ministry.  When  the  Whigs 
came  into  power  a  bill  was  introduced  to  remove  from 
the  Crown  the  power  to  create  an  unlimited  number  of 
peerages.  This  bill  did  not  become  a  law ;  the  royal  pre- 
rogative remained  unchanged ;  and  we  have  seen  how  im- 
portant it  has  become  in  the  development  of  the  modern 
democratic  Constitution.  Walpole  was  not  forced  to  rely 
upon  the  power  to  create  new  peers  in  order  to  enjoy  the 
continued  support  of  the  House  of  Lords.  This  House 
had  been  controlled  by  the  Whig  aristocracy  at  the  time 
of  the  Great  Revolution,  and  it  remained  Whig  until  the 
later  years  of  Anne.  The  division  in  the  Tory  party 
incident  to  the  bringing  in  of  the  House  of  Hanover  again 
gave  the  Upper  House  to  the  Whigs,  and  Walpole  en- 
joyed the  continued  support  of  the  Whig  aristocracy. 
This  is  a  fact  of  great  importance  in  accounting  for  the 
origin  of  the  Cabinet.  On  various  occasions,  finding  it 
inconvenient  to  accede  to  the  wishes  of  the  House  of 
Commons,  Walpole  relied  upon  his  faithful  supporters  in 
the  Upper  House  to  shield  his  government  from  the  odium 
of  non-compliance.  Since  1832  it  has  been  more  difiicult 
for  a  minister  to  shield  himself  in  that  way.  But  in  the 
time  of  Walpole  the  doctrine  of  the  constitutional  subor- 
dination of  the  House  of  Lords  had  not  been  developed. 
It  was  of  immense  advantage  to  the  Prime  Minister  to  be 
able  to  make  his  permanent  supporters  in  the  Upper 
House  a  scapegoat  for  unpopular  votes. 


356        GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xxxvi 

The  great  principle  which  Walpole  may  be  said  to  have 
fully  recognized  and  to  have  permanently  established  in 
the  English  Constitution  is,  that  the  House  of  Commons 
and  the  executive  officers  of  government  should  at  all 
times  be  in  apparent  harmony.  In  his  view  it  was  not 
essential  that  the  House  of  Lords  should  be  in  apparent 
harmony,  because  he  himself  used  that  House  to  destroy 
measures  which  he  had  appeared  to  favour  in  the  Commons. 
In  this  way  he  kept  his  government  in  apparent  harmony 
with  the  House  of  Commons.  This,  it  will  be  observed, 
is  one  great  principle  of  the  modern  Cabinet  system. 
There  was  indeed  a  suggestion,  or  a  foreshadowing,  of 
this  principle  in  some  of  the  acts  of  the  government  in 
the  time  of  Charles  II.  There  were  various  acts  in  the 
reign  of  William  III.  and  in  that  of  Anne,  which  indicate 
a  tendency  to  harmonize  the  Executive  with  the  majority 
in  the  House  of  Commons.  Yet  a  complete  harmony 
between  them  was  the  exception  rather  than  the  rule 
before  the  Ministry  of  Walpole.  He  may  be  said  to  be 
the  first  statesman  who  fully  recognized  this  principle 
and  consistently  acted  upon  it. 

How  could  a  Prime  Minister  enjoy  for  so  long  a  time 
the  uninterrupted  support  of  a  majority  of  a  frequently 
elected  House  of  Commons?  It  was  by  the  exercise  of 
certain  royal  prerogatives.  The  safety  of  the  kingdom 
required  that  a  certain  amount  of  money  should  be  spent 
secretly,  for  which  no  account  was  rendered  to  the  public. 
There  is  a  common  belief  that  Walpole  used  a  large 
amount  of  public  money  to  pay  members  of  Parliament  for 
their  votes.  According  to  this  view  he  purchased  his 
privileges  with  hard  cash.  A  more  careful  study  of  Wal- 
pole's  administration  leads,  however,  to  the  conviction 
that  he  did  not  gain  votes  in  the  Commons  by  the  direct 
payment  of  money,  though  he  undoubtedly  used  the 
bestowal  of  pensions  and  the  patronage  of  office  to  that 


CHAP.  XXXVI  WALPOLE  AND  THE  CABINET  357 

end.  Again,  when  it  became  necessary  to  elect  a  new 
House,  he  exercised  the  royal  influence  in  order  that  a 
subservient  or  a  manageable  House  should  be  chosen. 
We  have  seen  that  Charles  II.  reorganized  the  boroughs 
and  cities  and  transferred  the  voting  constituency  from 
Whigs  to  Tories.  James  II.  reorganized  them  again  and 
made  the  voting  constituency  Catholic  instead  of  Prot- 
estant. With  such  pliable  constituencies  at  hand  it  was 
not  strange  that  Walpole  and  his  party  supporters  should 
see  to  it  that  the  voting  constituency  in  boroughs  was  so 
constituted  and  managed  that  loyal  Whig  supporters  were 
sent  to  the  House  of  Commons.  In  this  work  he  was 
greatly  aided  by  the  leading  Whig  magnates,  who  gained 
control  of  the  boroughs  in  the  vicinity  of  their  estates. 
Thus  the  continued  support  of  the  Commons  was  secured 
by  a  judicious  exercise  of  royal  prerogative  and  party 
influence. 

A  careless  reader  of  English  history  is  likely  to  get 
the  impression  that  Walpole  was  the  original  briber  and 
manipulator  of  parliamentary  elections.  No  historian, 
indeed,  says  anything  of  the  sort,  but  so  much  emphasis 
has  been  given  in  general  political  literature  to  the  cor- 
rupt practices  with  which  the  name  of  Walpole  has  been 
associated,  and  so  little  attention  has  been  paid  to  the 
similar  practices  of  the  earlier  statesmen,  that  he  is  made 
to  bear  an  undue  share  of  the  odium.  I  have  endeavoured 
to  give  emphasis  to  that  which  others  have  neglected.  I 
have  tried  to  make  it  clear  that,  till  the  time  of  Elizabeth 
and  the  early  Stuarts,  the  use  of  royal  or  arbitrary  power 
in  the  selection  of  members  of  the  national  assembly 
had  been  the  ordinary  practice.  In  a  certain  sense,  Wal- 
pole simply  reverted  to  the  ancient  method  of  securing 
harmony  in  the  government  when  he  used  the  royal  pre- 
rogative to  determine  the  membership  and  to  control  the 
action  of  the  national  assembly. 


358        GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xxxvi 

This  analogy  should  not,  however,  be  carried  too  far. 
When,  in  the  time  of  the  Lancastrian  kings,  the  House  of 
Commons  was  filled  up  by  nominees  of  members  of  the 
House  of  Lords,  it  was  an  instance  of  the  control  of  a 
weak  and  ill-developed  branch  of  the  national  assembly 
by  the  older  and  fully  developed  branch.  When  Walpole 
and  his  Whig  supporters  in  the  House  of  Lords  controlled 
the  election  of  members  of  the  House  of  Commons,  they 
knew  that  they  were,  in  a  sense,  choosing  their  own  mas- 
ters, for  the  Commons  had  long  since  ceased  to  hold  a 
subordinate  place  in  the  government.  The  Executive 
controlled  the  action  of  the  Commons  largely  through  the 
use  of  royal  prerogative,  and  the  Commons  controlled  the 
Executive  by  its  votes  of  necessary  supplies.  In  a  certain 
sense  each  controlled  the  other,  and  this  is  a  part  of  the 
mystery  of  the  Cabinet  system.  In  the  ancient  control  of 
the  national  assembly  through  royal  prerogative,  there 
was  absent  from  the  minds  of  men  the  distinct  idea  that 
one  branch  of  the  assembly,  the  Commons,  apart  from 
the  Monarch,  represented  the  dominant  power  of  the 
nation. 

With  all  their  bribing  and  manipulation  of  constitu- 
encies, the  Whig  leaders  under  the  guidance  of  Walpole 
did  not,  after  all,  secure  harmony.  They  were  confronted 
at  every  stage  by  a  vigorous  and  persistent  opposition, 
and  were  obliged  constantly  to  use  the  power  of  persua- 
sion to  keep  their  supporters  together.  Men  equally 
skilled  in  the  power  of  persuasion  were  pitted  against 
them.  The  Tudors  secured  support  with  little  effort  at 
persuasion.  If  such  critics  of  the  government  as  Wal- 
pole at  all  times  encountered  had  appeared  in  the  time 
of  the  early  Tudors,  they  would  have  been  beheaded. 
But  Tory  leaders  in  the  time  of  the  Hanoverians  could 
criticise  the  Whig  government  without  incurring  the  pen- 
alties of  treason.     Walpole  knew  that  when  his  patronage 


CHAP.  XXXVI         WALPOLE  AND   THE  CABINET  35fl 

and  persuasion  and  management  should  fail  to  secure  him 
majorities  in  the  Commons  he  must  give  up  the  reins  of 
government.  When  this  did  finally  happen,  at  the  end 
of  twenty-one  years,  he  at  once  resigned  office,  and  others 
succeeded  him  whom  the  Commons  would  support. 

In  a  former  chapter  five  distinct  acts  have  been  pointed 
out  which  have  to  do  with  the  selection  of  a  modern 
Cabinet.  First,  the  Queen  appoints  the  various  members. 
Secondly,  the  House  of  Commons  must  give  its  approval 
to  the  appointments  by  sanctioning  the  measures  proposed 
by  the  Cabinet.  Third,  when  the  Commons  refuse  to 
approve  of  the  policy  of  the  Cabinet,  before  resigning 
office  the  Cabinet  may  dissolve  Parliament  and  appeal  to 
the  voters.  If  the  voters  return  a  majority  of  Cabinet 
supporters,  then  the  members  of  the  government  remain 
in  office.  In  this  way  the  voters  may  be  said  to  choose 
the  Cabinet.  Fourth,  the  two  political  parties  are  accus- 
tomed to  select  each  a  party  leader  who  shall  be  Prime 
Minister  when  his  party  comes  into  power.  The  Prime 
Minister  must  associate  with  himself  statesmen  high  in 
the  favour  of  the  party.  In  this  way  the  political  parties 
may  be  said  to  choose  the  Cabinet.  Finally,  in  a  certain 
sense  the  members  of  the  Cabinet  may  be  said  to  choose 
themselves.  Before  being  recognized  as  party  leaders 
they  must  make  themselves  leaders  in  fact  by  superior 
ability  and  industry. 

We  may  learn  how  far  the  Cabinet  of  Walpole  was 
from  the  later  Cabinet  by  discussing  its  relation  to  each 
of  these  five  acts. 

First,  the  Monarch  must  appoint.  There  are  certain 
emergencies  in  which  it  is  still  maintained  that  the 
Queen  may  have  some  influence  in  the  determination  of 
the  membership  of  the  Cabinet,  but  in  general  the  action 
is  a  mere  formal  matter.  In  the  time  of  Walpole  this 
was  very  different.     If  George  I.  or  George  II.  had  with' 


S60       GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xxxvi 

drawn  his  support  from  the  government  of  Walpole,  the 
minister  could  not  have  remained  in  office,  however  faith- 
ful may  have  been  his  majority  in  Parliament.  This  fact 
greatly  complicated  the  position  of  Walpole.  He  was 
compelled  to  manage  the  King  as  well  as  the  Parliament. 
There  was  a  rancorous  quarrel  between  George  I.  and  his 
son.  While  Walpole  was  forced  to  be  the  friend  and  sup- 
porter of  the  first  King  he  incurred  the  enmity  of  the 
second.  When  the  first  George  died  the  minister  was 
under  the  necessity  of  winning  the  favour  of  his  former 
enemy.  Had  he  failed  in  this,  the  retention  of  his  posi- 
tion would  have  been  impossible.  It  was  not  then  a  part 
of  the  English  Constitution  that  the  King  should  accept 
as  his  chief  minister  one  whom  he  did  not  personally 
favour.  True,  the  fact  that  there  was  a  disputed  succes- 
sion and  that  the  kings  were  foreigners  and  not  greatly 
absorbed  in  English  politics,  made  this  part  of  the  work 
easier  than  it  would  otherwise  have  been. 

The  second  point  in  the  comparison  has  already  been 
somewhat  fully  discussed.  It  was  the  most  important 
original  contribution  which  Walpole  made  to  the  modern 
Cabinet  system  that  he  fully  recognized  and  acted  upon 
the  principle  that  the  Cabinet  must  at  all  times  have  the 
support  of  the  House  of  Commons.  In  this  respect  Wal- 
pole's  Cabinet  was  in  strict  accord  with  the  modern  Cabi- 
net. 

In  respect  to  the  relation  of  the  constituents  to  the 
choosing  of  the  Cabinet,  a  marked  contrast  may  be  ob- 
served between  the  time  of  Walpole  and  the  present  day. 
Or,  it  may  be  nearer  the  truth  to  say  that  there  was  no 
direct  relation  between  them  in  the  time  of  Walpole. 
Government  in  the  eighteenth  century  was  still  of  the 
nature  of  a  conspiracy  against  the  unrepresented  nation. 
Outside  of  a  few  country  constituencies,  in  which  there 
were  many  small  free-holders  who  would  not  be  coerced, 


CHAP.  XXXVI         WALPOLE   AND  THE   CABINET  361 

there  was  no  class  of  independent  voters  to  whom  the  two 
parties  could  appeal  in  case  the  Cabinet  was  defeated  in 
the  Commons.  There  were  certain  country  constituencies 
which  were  controlled  by  the  country  gentlemen  and  the 
clergy.  These  were  Tory  by  position  and  heredity,  and 
it  would  have  been  folly  to  think  of  changing  them. 
There  were  other  constituencies  in  the  hands  of  the  Whig 
aristocracy;  others  were  Whig  on  account  of  their  com- 
mercial interests ;  still  others  were  controlled  by  the 
Executive  government,  and  while  Walpole  was  in  power 
these  were  Whig  by  royal  prerogative.  Counting  all 
who  pretended  to  vote  in  all  these  constituencies,  they 
were  but  a  small  fraction  of  the  adult  male  population.- 

It  was  a  peculiarity  of  Walpole's  rule  that  he  did 
not  suffer  himself  to  be  defeated  in  the  House  of  Com- 
mons. When  at  the  end  of  his  long  rule  he  was 
finally  defeated,  he  resigned  office.  He  did  not  dis- 
solve Parliament  and  appeal  to  the  constituencies  on 
the  specific  measure  upon  which  he  was  defeated.  Wal- 
pole, like  the  Tudors,  showed  a  wholesome  fear  of  the 
unrepresented  nation.  He  avoided  war.  He  was  careful 
not  to  tax  any  one  who  would  make  a  serious  disturbance 
about  it.  He  conciliated  the  country  gentlemen  by  a  re- 
duction in  the  land  tax.  When  his  excise  bill  threatened 
to  produce  serious  disturbance,  he  withdrew  it.  Walpole 
constantly  respected  the  feelings  of  the  nation,  but  he  could 
not,  like  a  modern  Prime  Minister,  make  a  direct  appeal 
to  the  nation  to  save  himself  from  a  hostile  House  of 
Commons.  He  kept  himself  at  peace  with  the  nation 
by  constantly  controlling  the  action  of  Parliament  and 
by  not  permitting  the  Commons  to  become  hostile  to  his 
government.  As  formerly  stated,  he  was  assisted  in  this 
by  his  ability  to  make  the  House  of  Lords  a  scapegoat 
for  certain  odious  votes. 

The  fourth  item  in  the  comparison  pertains  to  the  choice 


362       GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xxxvi 

of  party  leaders  by  the  respective  political  parties.  In  the 
time  of  Walpole,  nothing  of  the  sort  could  have  occurred. 
Both  parties  were  divided  into  factions.  Walpole  made 
himself  the  leader  of  his  party  through  the  triumph  of  a 
faction  among  the  Whigs.  When  George  I.  was  crowned 
there  still  remained  as  leaders  of  their  party  a  few  of  the 
original  Whigs  of  the  Revolution.  The  younger  and 
more  aggressive  faction  in  the  party  was  led  by  Walpole, 
and  after  a  few  years  his  faction  triumphed.  Then,  in  1721, 
Walpole,  having  gained  the  favour  of  the  King,  was  made 
First  Lord  of  the  Treasury  and  was  generally  recognized 
as  the  first  minister  of  the  realm.  He  was  not,  however, 
such  a  minister  because  a  political  party  had  definitely 
chosen  him  to  the  position  of  leadership.  In  this  respect 
the  modern  Cabinet  differs  from  that  of  Walpole.  The  con- 
stitutional position  of  the  political  party  as  now  understood 
was  not  fully  developed.  Political  parties  then  resembled 
the  ancient  class  factions  as  the  modern  party  does  not. 
Class  and  class  interests  then  controlled  the  political 
parties  to  an  extent  to  which  they  do  not  and  cannot  now. 
In  the  time  of  Walpole  there  were  special  party  divisions 
growing  out  of  the  circumstances  of  the  time.  Some  of 
the  Tories  were  confessed  Jacobites,  and  it  was  to  the 
political  advantage  of  the  Whigs  to  make  it  appear  that 
all  the  Tories  were  either  secretly  or  openly  in  sympathy 
with  them.  As  time  advanced,  the  Jacobites  diminished 
in  numbers  and  in  influence.  There  were  Tories,  notably 
Bolingbroke,  who  during  the  later  part  of  the  rule  of 
Walpole,  laboured  to  break  down  the  distinction  between 
Whigs  and  Tories.  Bolingbroke  strove  with  some  degree 
of  success  to  unite  Tories  and  disaffected  Whigs  against 
the  government.  But  Walpole  encountered  his  greatest 
difficulty  with  disaffected  leaders  in  his  own  party.  There 
were  always  Whigs  who  opposed  him ;  some  on  purely 
personal  grounds,  others  because  they  did  not  approve  of 


CHAP.  XXXVI  WALPOLE  AND  THE  CABINET  363 

the  policy  of  his  government.  There  were  Whigs  who 
opposed  the  government  on  account  of  its  corrupt  prac- 
tices ;  Whigs  who  opposed  details  of  the  financial  policy ; 
and  finally  it  was  a  faction  of  Whigs  which,  leading  the 
opposition  to  the  continued  peace  policy  of  the  govern- 
ment, drove  Walpole  from  office.  From  these  facts  it  is 
clear  that  the  close  and  intimate  relation  which  now  sub- 
sists between  the  Cabinet  and  the  political  party  did  not 
subsist  in  the  time  of  Walpole. 

The  fifth  and  last  item  in  the  comparison  between  the 
earlier  and  the  later  Cabinet  system  is  in  respect  to  the 
relation  of  the  members  of  the  Cabinet  to  their  own  pro- 
motion to  Cabinet  rank.  Certainly  there  has  never  been 
an  instance  in  which  a  Prime  Minister  more  clearly 
chose  himself,  and  by  industry  and  native  ability  main- 
tained his  position,  than  in  the  case  of  Walpole.  He  en- 
tered Parliament  in  1700,  at  the  age  of  twenty-four. 
Joining  himself  to  the  Whig  party,  he  held  important 
offices  in  the  Ministry  from  1705  to  1710.  It  was  fortu- 
nate for  Walpole  that  when  the  Whig  Ministry  became 
involved  in  the  South  Sea  speculations  he  belonged  to  the 
section  of  the  party  out  of  office  and  openly  opposed  to 
the  government.  Thus  he  escaped  the  odium  which  was 
visited  upon  the  other  leaders  of  the  party  upon  the  burst- 
ing of  the  South  Sea  Bubble,  and  was  in  1721  advanced 
to  the  first  place  in  the  Ministry.  It  will  be  remembered 
that  at  this  time  he  was  already  an  experienced  statesman, 
having  had  twenty-one  years  of  active  political  life. 
From  1721  he  continued  to  govern  England  till  1742, 
because  he  had  the  industry  and  the  personal  qualities 
which  enabled  him  to  manage  each  of  the  two  kings  whom 
he  served  in  such  wise  as  to  centre  in  himself  all  the  powers 
of  royal  prerogative.  He  was  able  at  all  times  to  control 
the  votes  of  the  House  of  Commons  and  to  direct  those  of 
the  Lords.     He  so  manipulated  the  influential  forces  in 


364       GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xxxvi 

the  voting  constituencies  that  at  each  election  a  tractable 
House  of  Commons  was  chosen,  which  enabled  him  to 
formulate  and  carry  into  effect  such  policy,  financial, 
religious,  domestic,  and  foreign,  as  would  keep  the  nation 
quiet  and  yet  would  not  greatly  offend  any  powerful  class 
therein.  He  continued  to  rule  because  under  all  circum- 
stances he  possessed  and  exercised  the  ability  to  grasp  the 
reins  of  government  and  hold  them  against  all  other 
leaders  and  all  factions  in  the  land. 

J  Walpole  may  be  said  to  have  created  the  modern  office 
f^  of  Prime  Minister.  That  officer  secures  the  cooperation 
of  the  Monarch  in  carrying  into  effect  the  policy  deter- 
mined upon  by  the  Cabinet  in  secret  conference  ;  he  ap- 
portions the  ofiices  to  the  various  leaders  in  his  party ; 
he  composes  all  quarrels  and  is  the  disciplinarian  of  his 
party.  Walpole  fulfilled  all  of  these  high  functions  of 
the  modern  Prime  Minister.  Yet  there  was  in  his  case 
no  beaten  track,  no  well-understood  precedents  to  aid  him 
in  the  delicate  work.  The  Prime  Minister  of  to-day  has 
the  benefit  of  a  long-established  political  party,  which  in 
the  minds  of  the  people  has  taken  the  form  of  a  corporate 
existence.  In  this  corporate  body  there  is  at  all  times  a 
group  of  men  who  have  made  themselves  leaders.     To  be- 

•  come  such  a  leader  one  must  subject  himself  to  discipline  ; 
he  must  defer  to  the  wishes  of  others  ;  he  must  control 
his  temper.  The  modern  Premier  has  but  to  temper  and 
modify  the  discipline  which  has  already  been  wrought  out 
in  the  natural  working  of  the  political  party.  There  was 
no  such  disciplined  group  at  the  service  of  the  first  Prime 
Minister.  In  Walpole's  case  discipline  was  an  exceed- 
ingly personal  business.  It  is  reported  that  on  one 
occasion  he  actually  used  physical  force  in  a  case  of 
Cabinet   discipline.^      In   general,   however,   he   selected 

1  See  references  to  Coxe's  Life  of  Walpole^  and  Memoirs  of  Lord 
Hervey  in  Knight's  Popular  History  of  England,  Vol.  VI.,  pp.  61,  62. 


CHAP.  XXXVI  WALPOLE   AND   THE   CABINET  366 

men  who  would  obey  him.  Men  of  inferior  ability  are 
more  tractable  than  men  of  conspicuous  gifts.  Towns- 
hend  was  a  man  of  little  less  note  than  Walpole  himself. 
They  remained  in  office  together  for  nine  years ;  then 
they  quarrelled,  and  Townshend  was  forced  to  resign. 
It  added  not  a  little  to  the  difficulty  of  Walpole's 
position  that  he  was  under  the  necessity  of  maintaining 
discipline  in  the  Ministry  by  the  exercise  of  arbitrary 
power. 

The  duties  of  the  Prime  Minister  are  now  greatly  sim- 
plified and  facilitated  by  the  public  recognition  of  the 
office.  Walpole  exercised  nearly  all  of  the  high  preroga- 
tives and  duties  of  the  modern  Premier,  while  at  the  same 
time  no  such  office  was  recognized.  Immense  prejudice 
naturally  existed  against  the  concentration  of  so  much 
power  in  the  hands  of  one  man  supported  by  a  few  secret 
advisers.  There  was  then  no  recognition  of  the  corporate 
existence  of  the  Cabinet,  none  of  the  principle  that  the 
Cabinet  is  as  a  whole  responsible  for  the  acts  of  each 
member.  A  favourite  form  of  attack  upon  Walpole  was 
to  accuse  him  of  exercising  those  very  powers  which  in 
more  recent  times  are  seen  properly  to  pertain  to  the 
Prime  Minister  ;  and  such  attacks  were  met  by  denial 
of  the  charge.  1  To  avoid  prejudice  Walpole  assumed  to 
be  merely  one  of  the  King's  ministers.  Though  his  posi- 
tion required  him  to  exercise  all  the  duties  which  now 
belong  to  the  office  of  Premier,  it  obliged  him  at  the  same 
time  to  deny  the  existence  of  the  office. 

From  the  foregoing  comparison  it  appears  that  the  fol- 
lowing changes  were  necessary  for  the  development  of  the 
modern  Cabinet  from  that  of  Walpole  :  First,  the  removal 
from  the  monarch  of  the  power  to  exercise  his  personal 
choice  in  the  selection  of  the  Prime  Minister.  Second, 
the  perfection  of  the  party  organizations  so  that  at  all 
1  Morley,  Walpole,  pp.  163,  164. 


366       GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xxxvi 

times  there  should  be  two  well-organized  parties,  each 
with  a  group  of  party  leaders,  one  of  whom  has  been  defi- 
nitely chosen  as  the  leader  of  the  party  which  stands  ready 
at  any  moment  to  take  charge  of  the  executive  business 
of  the  government.  Third,  the  enfranchisement  of  the 
nation  and  the  making  of  the  enfranchised  nation  instead 
of  the  nominal  monarch  the  source  of  power. 

The  one  change  of  fundamental  importance  is  the  trans- 
fer of  the  choice  of  the  ministers  from  the  monarch  to 
the  nation.  This  has  been  effected  in  an  indirect  way 
through  the  development  of  the  party  system.  Walpole 
ruled  through  royal  prerogative  derived  in  large  part 
from  the  preference  of  the  King.  Salisbury  and  Glad- 
stone have  ruled,  successively,  as  the  choice  of  the  enfran- 
chised nation.  Yet  it  is  difficult  to  see  how  it  would  have 
been  possible  for  all  the  high  powers  of  State  to  become 
centred  in  a  modern  Premier  if  there  had  not  been  first 
a  succession  of  Premiers  who  ruled,  not  by  the  conscious 
choice  of  the  nation,  but  rather  by  the  actual  choice  of 
the  monarch.  It  is  this  gradual  and  imperceptible  trans- 
fer of  the  power  of  choosing  from  the  monarch  to  the 
people  which  has  made  it  possible  for  the  undivided  and 
absolute  form  of  government  perfected  by  the  Tudors  to 
be  transmuted  into  a  modern,  absolute  democratic  Cabi- 
net. By  this  mysterious  evolution  the  ideal  of  James  I. 
and  the  ideal  of  his  hostile  House  of  Commons  are  both, 
in  a  sense,  realized  in  the  same  government.  To  accom- 
plish this,  both  the  King  and  the  Parliament  have  been 
compelled  to  forego  their  personal  preferences,  and  to 
make  of  themselves  deliberate  and  conscious  agencies  for 
carrying  into  effect  the  will  of  the  nation. 

Walpole  did  not  rule  in  a  democratic  way,  yet  he  was 
all  the  time  controlled,  or  greatly  influenced,  by  the  will 
of  the  nation.  While  he  resembled  the  Tudors  in  gen- 
eral, he  resembled  Elizabeth  in  particular.     The  one  great 


CHAP.  XXXVI         WALPOLE   AND  THE   CABINET  367 

effort  of  his  rule  was  to  keep  England  quiet,  and  to  give 
time  for  apparently  insuperable  difficulties  to  settle  them- 
selves. This,  it  will  be  remembered,  was  likewise  the 
great  mission  of  Elizabeth.  There  is  in  each  case  a  doubt 
as  to  whether  it  was  the  deliberate  intention  of  the  ruler 
to  accomplish  these  high  and  patriotic  ends.  There  can 
be  no  doubt,  however,  that  in  both  cases  the  effect  was  to 
give  to  the  nation  a  new  sense  of  unity,  and  to  prepare  it 
to  endure  the  prolonged  struggles  and  trials  which  were 
to  follow.  After  the  death  of  Elizabeth  England  was 
involved  in  continual  civil  strife  and  foreign  wars  until 
the  time  of  Walpole.  Almost  continual  war  and  civil 
strife  followed  the  end  of  Walpole's  rule  until  the  battle 
of  Waterloo. 

Between  the  death  of  Elizabeth  and  the  rise  of  Walpole 
there  had  been  great  progress  in  the  spread  of  democratic 
ideas ;  the  theory  of  democracy  had  been  born  ;  yet  it  may 
be  doubted  whether  any  real  progress  had  been  made  in  the 
development  of  the  forms  of  the  modern  democratic  Con- 
stitution. There  had  been  an  infinite  amount  of  strife  over 
the  privileges  of  office-holders ;  there  had  been  fierce  con- 
tentions between  different  religious  sects ;  yet  there  had 
been  a  narrowing  rather  than  a  widening  of  the  franchise. 
Except  in  the  minds  of  a  few  discredited  and  uninfluential 
persons  there  had  been  no  thought  or  purpose  of  taking 
into  the  government  the  unrepresented  nation.  Great 
progress  had  indeed  been  made  in  the  settlement  of  the 
relative  positions  of  parliamentary  privilege  and  royal  pre- 
rogative. It  may  be  said  to  have  been  as  thoroughly  settled 
as  anything  can  be  settled  in  the  English  Constitution  that 
royal  prerogative  may  not  override  Parliament.  It  would 
be,  however,  a  great  mistake  to  assume  that  the  triumph 
of  Parliament  involved,  in  itself,  any  progress  towards  the 
modern  democratic  Constitution.  Parliament,  in  itself, 
was  not  one  whit  more  democratic  than  was  the  Crown. 


368        GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xxxvi 

The  development  of  the  Cabinet  system,  so  far  as  it 
was  developed  under  the  guidance  of  Walpole,  was  not  in 
itself  a  movement  in  the  direction  of  democracy.  Wal- 
pole feared  and  dreaded  democracy,  as  did  the  other  mem- 
bers of  the  ruling  classes.  He  made  use  of  the  terrors  of 
the  unrepresented  nation  to  frighten  the  privileged  classes 
into  submission,  as  did  his  Tudor  prototypes.  If  Wal- 
pole's  ideal  had  been  fulfilled,  harmony  between  the  privi- 
leged classes  would  have  been  achieved,  and  the  nation 
would  have  been  forever  shut  out  from  participation  in 
the  government.  If  real  harmony  could  have  been 
reached,  and  if  the  nation  had  been  led  to  submit  to  the 
rule  of  a  harmonious  aristocracy,  then  England  would 
have  moved  in  the  direction  of  what  we  are  wont  to  call 
Asiatic  civilization.  On  account  of  the  perpetual  strife 
between  the  ruling  classes  the  people  had  enjoyed  many 
of  the  fruits  of  democracy  without  its  annoyances  and 
responsibilities.  Harmony  in  the  ruling  classes,  with  the 
nation  still  unrepresented,  would  have  been  a  greater 
revolution  in  the  English  government  than  any  it  has  ever 
experienced.  Such  a  supposition,  however,  is  absurd.  It 
involves  the  assumption  that  the  English  nation  might 
possibly  become  something  else  ;  that  they  might  become 
a  people  such  as  they  had  never  been,  a  people  able  to 
draw  sharp  lines  of  distinction  between  the  rulers  and 
the  governed.  Nothing  is  more  characteristic  of  the 
English  than  the  fact  that  they  have  never  been  capable 
of  drawing  sharp  lines  anywhere. 

There  was  never  a  time  when  there  were  not  ample 
grounds  for  relentless  strife  between  the  rulers  and  the 
governed.  We  may  readily  believe  that  the  spirit  of  strife 
between  the  people  and  the  government  had  been  fostered 
and  encouraged  by  the  quarrels  of  the  ruling  classes  among 
themselves.  It  may  be  equally  true  that  the  fierceness  of 
class  against  class  and  the  exigencies  of  foreign  wars  have 


CHAP.  XXXVI  WALPOLE   AND  THE   CABINET  369 

tended  to  obscure  and  delay  the  inevitable  contest  of  the 
people  against  their  government  for  the  control  of  that 
government.  Through  the  device  of  the  Cabinet,  a  quar- 
rel of  a  hundred  and  fifty  years'  standing  was  settled. 
Walpole's  Cabinet  did  adjust  the  relations  of  the  Crown 
to  the  Parliament,  and  this  prepared  the  way  for  the  final 
contest  between  the  people  and  the  government.  A  state 
of  foreign  warfare  is  not  a  favourable  condition  for  such 
domestic  strife.  Continued  wars  for  seventy-five  years 
after  the  rule  of  Walpole  delayed  and  tempered  the  con- 
test of  the  people  for  a  share  in  the  government ;  but 
they  did  not  prevent  the  issue  from  being  joined,  nor  pre- 
vent the  people  from  making  substantial  gains. 


r 


CHAPTER  XXXVII 

walpole's  successors 

^T^HE  test  of  an  institution  which  seems  to  have  its 
-^  origin  largely  in  the  personal  qualities  of  a  single 
statesman  comes  when  the  working  of  it  passes  into  other 
hands.  Walpole  had  gone  into  the  war  against  Spain  to 
prolong  his  power ;  but  notwithstanding  this,  he  was 
defeated  in  the  election  of  the  Chairmen  of  Committees 
in  1742,  and  a  little  later  an  adverse  vote  on  an  election 
petition  caused  him  to  resign.  If  at  this  time  there  had 
been  a  fully  developed  modern  Cabinet,  the  other  members 
would  have  resigned  with  their  chief.  This  did  not  take 
place.  Walpole's  successor  was  found  in  his  own  Cabinet. 
Wilmington  was  nominally  the  head  of  the  government 
for  a  year.  Henry  Pelham  then  became  Prime  Minister 
and  held  the  position  until  his  death,  in  1754.  The 
chief  opponents  of  the  Walpole  Ministry  were  disaffected 
Whigs.  Some  of  these  were  taken  into  the  new  Minis- 
try, and  thus  the  fierce  critics  of  Walpole's  government 
consented  to  become  a  part  of  that  formed  by  his 
associates. 

With  the  disappearance  of  Walpole  it  became  more  diffi- 
cult to  manage  the  King.  Granville,  an  ancient  enemy  of 
Walpole,  was  taken  into  the  new  Ministry.  He  quarrelled 
with  the  leaders,  and  was  forced  by  them  to  resign.  Pitt 
and  Chesterfield,  who  had  been  conspicuous  among  Wal- 
pole's critics,  were  kept  out  of  the  Pelham  Ministry  on 

370 


CHAP.  XXXVII  WALPOLE'S  SUCCESSORS  371 

account  of  the  personal  disfavour  of  the  King.  Granville 
won  the  favour  of  the  King  and  used  his  influence  against 
the  Ministry.  When,  in  1746,  the  ministers  demanded 
that  Pitt  and  Chesterfield  should  be  admitted  into  olSice, 
the  King  refused  to  comply,  and  the  ministers  resigned. 
The  King  then  called  upon  Granville  to  form  a  new  Min- 
istry. He  undertook  the  task,  but  found  after  three  days 
that  with  the  greater  part  of  the  Whig  party  against  him 
it  was  impossible.  The  King  then  acceded  to  the  demands 
of  the  Pelham  Ministry,  and  restored  them  to  power  with 
Pitt  and  Chesterfield  admitted  to  oifice. 

The  constraining  of  George  II.  to  admit  to  the  Ministry 
men  whom  he  disliked  has  some  resemblance  to  the  events 
which  induced  William  III.  to  accept  a  Tory  Ministry, 
and  to  those  which  induced  Anne  to  accept  a  Whig  Min- 
istry, but  the  resemblance  is  altogether  superficial.  In 
the  time  of  William  and  Anne  the  monarchs  were  viewed 
as  the  responsible  heads  of  the  administration  ;  but  after 
the  long  rule  of  Walpole'  decided  progress  was  apparent 
in  the  direction  of  the  view  that  the  Prime  Minister  and 
his  supporters  were  responsible  for  the  administration. 
It  was  the  stress  of  war  that  induced  William  and  Anne 
to  accept  ministers  whom  they  did  not  like.  George  II. 
was  induced  to  accept  such  because  his  ministers  had  re- 
•  signed  in  a  body,  and  at  the  same  time  had  so  controlled  the 
action  of  Parliament  as  to  prevent  the  King's  friends  from 
forming  a  government.  Here  was  a  group  of  leading 
ministers  holding  secret  meetings  apart  from  the  King, 
and  at  the  same  time  holding  such  a  close  relation  to  Par- 
liament that,  so  long  as  they  received  the  cordial  support 
of  the  two  Houses,  they  could  force  the  King  to  a  choice 
between  having    no  government   at   all,   and  complying 

twith  their  demands.     We  see  in  this  an  essential  feature 
of  the  modern  Cabinet.     There  is  no  earlier  instance  of 


372      GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xxxvii 

George  II.  to  dissolve  the  Granville  Ministry  and  admit 
Pitt  to  a  place  in  the  Cabinet.     The  last  rising  in  sup- 
port of  the  Stuart  claimant  for  the  throne  occurred  a  few 
months  before  this  ministerial  crisis,  and  was  no  doubt  a 
strong  argument  in  the  mind  of  the  King  in  favour  of 
submission  to  the  demands  made  upon  him. 
/       The   new  method  of    changing   ministers   avoids   the 
necessity  of  impeachment.     Formerly,  obnoxious  ministers 
were  disposed  of  by  bills  of  attainder  or  by  impeachments. 
Impeachments  accompanied  the  changes  of  ministers  in 
the  time  of  Charles  II.,  as  also  under  both  William  III. 
and  Anne.     During  all  this  time  a  criticism  upon  the 
Ministry  was,  in  a  certain  sense,  a  reflection  upon  the 
monarch.     But  when  George  I.  ceased  to  attend  Cabinet 
meetings,  and  when  there  was  a  Prime  Minister  who  stood 
ready  to  bear  the  full  force  of  hostile  criticism,  the  gov- 
ernment could  be  criticised  without  special  reflection  upon 
the  King.     The  arena  for  hostile  criticism  was  chiefly  in 
the  House  of  Commons,  where  the  necessary  supplies  were 
voted.      Walpole  set  the  example  of  always  controlling 
that  House.     And  as  soon  as  that  became  impossible  he 
vacated  his  position  in  favour  of  another  Premier  who 
could  control  it.     When  Walpole  resigned,  a  committee 
of  investigation  was  appointed  by  the  House  of  Commons, 
but  there  was  no  impeachment.     Under  the  new  order  of 
governmental  responsibility  it  seemed  quite  sufficient  that 
a  minister  should  be  compelled  to  bear  the  burdens  of 
government  in  the  face  of  full  and  free  criticism.     And 
when  he  ceased  to  be  able  to  control  the  action  of  the  two 
Houses,  it  seemed  punishment  enough  that  he  should  be 
forced  to  resign.     Under  the  new  methods,  the  ministers 
and  the  two  Houses  became  more  thoroughly  identified. 
Those  men  become  chief  ministers  who  can  control  the 
Houses.     A  change  of  ministers  is  effected  through  politi- 
cal influence  and  through  an  indirect  action  of  the  Parlia- 


CHAP,  xxxvii  WALPOLE'S  SUCCESSORS  373 

merit.     Thoroughly  political  methods  displace  the  older 
legal  methods  of  changing  the  Ministry. 

When  Henry  Pelham  died  in  1754,  his  brother,  the 
Duke  of  Newcastle,  was  made  Prime  Minister  in  his  stead. 
There  w^as  difficulty  in  getting  a  leader  in  the  Commons. 
One  war  had  been  brought  to  a  close  by  the  Pelham  Min- 
istry, and  when  the  leader  died,  England  was  on  the  point 
of  being  involved  in  another  great  European  war.  The 
Duke  of  Newcastle  was  unable  to  lead  during  such  troub- 
lous times,  and  after  three  years  was  led  to  resign  the 
Premiership. 

William  Pitt  had  been  growing  in  popularity  for 
twenty  years.  He  was  generally  recognized  as  the 
ablest  statesman  of  the  time.  Upon  the  resignation 
of  Newcastle,  Pitt  was  made  Secretary  of  State  for  For- 
eign Affairs  with  the  real  powers  of  Prime  Minister.  He 
was  still  disliked  by  the  King,  and  on  this  account  the 
nominal  Premiership  was  given  to  another  —  first  to  the 
Duke  of  Devonshire,  and  later  to  Newcastle  again.  The 
elevation  of  Pitt  arose  from  a  popular  demand,  and  because 
of  a  sense  of  his  fitness  on  the  part  of  leading  statesmen. 
His  Ministry  was  one  of  the  most  brilliant  in  English  an- 
nals. Corruption  and  incompetency  at  home  were  rebuked, 
and  the  arms  of  England  became  triumphant  abroad. 

In  the  midst  of  the  triumphs  of  Pitt,  George  II.  died, 
and  his  grandson,  George  III.,  became  king.  Immediately 
there  was  felt  a  decided  change  in  the  spirit  and  tone  of 
kingly  power.  The  new  King  manifested  from  the  first 
a  determination  to  have  a  personal  share  in  the  business 
of  government.  Pitt  now  found  that  he  could  not  con- 
trol the  policy  of  the  government,  and  refused  to  be  re- 
sponsible therefor.     He  resigned  his  position  in  1762. 

With  the  resignation  of  Pitt,  an  important  chapter  in 
the  evolution  of  the  Cabinet  system  came  to  an  end. 
There  were  still  men  in  Pitt's  Cabinet  who  had  served  in 


374      GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xxxvii 

that  of  Walpole.  But  leadership  now  passed  to  new  men. 
There  was  no  longer  a  disputed  succession.  The  last  ef- 
fort of  the  young  Pretender  to  gain  the  Crown  of  England 
was  made  in  1745.  The  Tories  had  ceased  to  be  suspected 
of  treason  to  the  house  of  Hanover.  The  resignation  of 
Pitt  ends  the  long  Whig  rule.  During  the  greater  part 
of  the  time  for  the  next  seventy  years  the  offices  of  the 
government  were  in  the  hands  of  Tories. 

According  to  the  theory  of  the  fully  developed  modern 
Cabinet  it  ought  not  to  be  possible  to  state  which  party 
receives  the  most  cordial  support  of  the  monarch.  But 
it  is  evident  that  the  last  two  Stuarts  were  Tories  ;  Wil- 
liam III.  possessed  Whig  sympathies ;  Anne  was  equally 
inclined  to  the  Tories  ;  the  first  two  Georges  were  Whigs  ; 
while  George  III.  and  George  IV.  were  both  Tories. 


I 


CHAPTER  XXXVIII 

TAXATION  AND   THE  UNREPRESENTED  NATION 

XT  should  never  be  forgotten  that  during  the  early  part 
-*-  of  the  eighteenth  century  Whigs  and  Tories  formed 
only  a  small  fraction  of  the  nation.  The  great  body  of 
the  people  were  neither  Whigs  nor  Tories.  They  had  no 
direct  share  in  government,  but  they  could  at  any  time 
furnish  the  brute  force  to  destroy  it.  In  ordinary  party 
politics  the  will  of  the  nation  was  not  regarded.  Govern- 
ment was  still  of  the  nature  of  a  conspiracy  against  the 
people.  It  was  an  easy  matter  for  the  political  philoso- 
phers of  the  last  half  of  the  Stuart  century  to  derive  from 
the  patent  fact  that  the  people  in  England  could  at  any 
time  rise  up  and  destroy  their  government,  the  theory 
that  the  government  was,  after  all,  a  sort  of  compact 
between  rulers  and  ruled.  But  the  fact  remained  that 
the  people  were  almost  wholly  shut  out  from  the  business 
of  government.  In  1775,  the  Englishmen  who  lived  in 
America  raised  the  standard  of  rebellion  because  of  an 
attempt  on  the  part  of  the  government  of  George  III.  to 
collect  a  duty  of  three  pence  a  pound  on  tea.  Some  of 
the  English  statesmen  of  the  day  expressed  astonishment 
that  the  colonies  should  make  such  a  fuss  about  so  trifling 
a  matter.  These  colonists,  they  said,  were  just  as  much 
represented  in  the  English  Parliament  as  were  nine-tenths 
of  the  tax-payers  in  England.  The  common  English  tax- 
payer had  never  been  represented  in  Parliament.     When 

375 


376     GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xxxvin 

the  ancient  kings  were  wont  to  send  the  sheriffs  and  other 
administrative  officers  directly  to  the  county  courts  and 
other  local  governments  to  secure  supplies,  there  may 
have  been,  and  there  probably  were,  in  these  acts  more  of 
the  elements  of  popular  representation  than  ever  existed 
in  the  House  of  Commons  previous  to  1832.  With  the 
creation  of  the  House  of  Commons  in  the  fourteenth  cen- 
tury, the  common  tax-payer  ceased  to  be  represented  in 
the  government  which  taxed  him.  He  thenceforth  had 
no  recourse  but  to  submit  to  extortion  or  to  make  war 
upon  the  tax-gatherer.  When,  in  1774,  the  Englishmen 
,  in  Boston,  Massachusetts,  boarded  a  ship  and  threw  the 

I  taxed  tea  into  the  ocean,  their  action  was  quite  in  accord 
with  the  actions  of  Englishmen  who  in  the  time  of  Henry 

ju  VII.  and  Henry  VIII.  had  on  various  occasions  made  war 

II  upon  collectors  sent  to  collect  taxes  voted  by  a  Parliament 
in  which  they  were  not  represented.  Elizabeth  seemed 
to  believe  that  taxing  by  means  of  Parliament  was  a  dan- 
gerous business.  It  was  the  policy  of  the  parliamentary 
party  during  the  time  of  the  early  Stuarts  to  gain  some 
popular  support  by  humouring  the  English  tax-payer. 

But  in  old  England  questions  arose  which  obscured  and 
tended  to  displace  the  issue  between  the  English  govern- 
ment and  the  English  tax-payer.  The  religious  conflict 
which  led  to  the  Civil  War;  the  Civil  War  itself;  the 
execution  of  the  King;  the  rule  of  the  Commonwealth; 
the  Restoration ;  the  religious  persecutions  and  the  strife 
with  Papal  tendencies  leading  up  to  the  Great  Revolution 
of  1688,  were  all  followed  by  the  long  wars  with  Louis 
XIV.,  which  lasted  almost  to  the  accession  of  the  house  of 
Hanover  in  1714.  In  the  midst  of  such  excitements  it  was 
not  easy  to  raise  the  standard  of  rebellion  upon  a  question 
of  a  penny's  increase  in  the  rates.  The  Englishmen  who 
lived  in  the  New  World  were,  however,  little  affected  by 
the  conflicts  in  the  mother-country,  and  with  them  the  old 


CHAP,  xxxviii        TAXATION  AND  THE  NATION  377 

English  spirit  of  resistance  to  the  tax-collector  survived 
in  all  its  vigour.  The  long  periods  of  moderation  and  of 
neglect  on  the  part  of  the  home  government  had  by  no 
means  weakened  that  ancient,  inherited  disposition  in  the 
breasts  of  the  colonists.  When,  therefore,  these  New- 
World  Englishmen,  who  had  preserved  intact  the  early 
spirit  of  opposition  to  lawful  taxation,  discovered  a  clearly 
defined  opportunity  for  the  application  of  the  ancient 
principle,  —  as  in  the  case  of  the  Stamp  Act  of  1765,  — 
they  astonished  the  statesmen  of  the  mother-country  by 
their  rebellious  temper. 

Certain  occurrences  during  the  long  rule  of  Walpole  shed 
much  light  upon  the  important  part  which  the  raising  of 
revenue  played  in  the  development  of  the  English  Consti- 
tution. Walpole  respected  the  British  tax-payer, '  and 
there  is  evidence  that  he  had  a  lively  sense  of  the  danger 
of  an  attempt  to  tax  the.  colonies.  His  motto  was,  "Let 
sleeping  dogs  lie."  He  had  also  a  strong  sense  of  the 
.injustice  and  the  inequality  of  the  burdens  of  taxation, 
■  and  did  many  things  to  lessen  the  injustice,  while  he  justi- 
fied continued  inequality  by  the  plea  that  a  shifting  of 
the  load  would  threaten  civil  war.  Against  the  Scotch 
brewers,  however,  he  persisted  in  a  measure  of  taxation 
in  the  face  of  prolonged  resistance  at  the  cost  of  some 
shedding  of  blood. 

But  the  most  important  of  his  acts  bearing  upon  the 
subject  in  hand  are  those  connected  with  the  Excise  Bill 
of  1733.  That  is  a  measure  which  has  always  com- 
mended itself  to  students  of  finance.  Walpole  himself 
looked  upon  it  as  a  great  and  beneficent  reform,  and 
was  not  at  all  daunted  by  the  formidable  opposition 
which  it  encountered  in  the  Houses  of  Parliament.  He 
even  looked  without  dismay  upon  diminished  majorities 
[in  the  Commons.  When  the  opposition  had  done  their 
worst  there  still  remained  a  respectable  majority  in  each 


/,. 


378     GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xxxvin 

of  the  two  Houses.  The  King  was  unflinching  in  his 
support,  and  was  highly  commending  the  courage  of  his 
minister.  There  was,  however,  a  threatened  rising  of  the 
English  tax-payers  against  the  bill.  The  Queen  urged 
that  troops  should  be  called  out  to  put  down  the  mob, 
but  Walpole  replied,  "I  will  not  be  the  minister  to  enforce 
taxes  at  the  expense  of  blood."  And,  while  still  enjoying 
the  support  of  the  two  Houses  and  of  the  Crown,  he  deter- 
mined to  withdraw  a  measure  which  his  judgment  heartily 
approved,  wholly  out  of  deference  to  the  English  nation 
which  was  represented  by  neither  Crown  nor  Parliament. 

In  this  series  of  events  the  action  of  the  Prime  Minister 
well  illustrates  the  supremacy  of  that  inspired  mediocrity 
of  common  sense  and  moderation  which  has  so  many  times 
been  the  saving  factor  in  the  history  of  political  crises. 
Here  also  may  be  seen  another  instance  when  the  spirit  of 
the  Constitution  finds  a  more  adequate  expression  in  the 
person  of  a  single  ruler  than  was  found  in  the  legally  con- 
stituted institutions.  These  occurrences  show  likewise 
that,  notwithstanding  that  the  old  English  habit  of  resist- 
ing the  government  had  been  weakened  by  distracting 
religious  conflicts  and  foreign  wars,  yet  the  spirit  of 
resistance  still  survived.  Events  of  later  years  illustrate 
its  persistence  and  growth ;  for,  stimulated  no  doubt  by 
the  successful  example  of  their  undismayed  brethren  over 
sea,  the  English  of  England  have  finally  vindicated  for 
themselves  the  constitutional  principle  that  taxation  and 
government  shall  be  only  by  and  through  representatives 
of  their  own  choice. 

The  "  sleeping  dog  "  respected  by  Walpole  was  the  un- 
represented English  nation.  No  view  of  American  his- 
tory is  more  erroneous  than  the  notion  that  the  American 
colonists  in  the  early  years  of  the  reign  of  George  III. 
Avanted  to  send  representatives  to  the  British  Parliament. 
These  Englishmen  in  America   had   founded   their  local 


CHAP,  xxxviii        TAXATION  AND   THE  NATION  379 

governments  at  a  time  when  it  was  still  the  expectation 
of  the  English  tax-payer  to  be  called  upon  to  make  war 
upon  the  tax-collector ;  that  is,  when  this  was  the  con- 
stitutional method  of  avoiding  extortion.  They  in  the 
New  World  came  into  possession  of  governmental  insti- 
tutions in  which  the  people  were  really  represented,  and 
they  were  pleased  with  the  change.  Even  Cavaliers  and 
Tories  whose  theories  were  utterly  opposed  to  popular 
representation  in  England,  developed,  when  they  came  to 
dwell  in  the  colonies,  a  great  fondness  for  the  representa- 
tive system.  Especially  was  this  true  after  they  had 
experienced  the  rule  of  certain  tyrannical  governors,  sent 
out  by  Charles  II.  and  James  II. 

The  religious  question  was  never  prominent  in  America. 
It  was  arbitrary  taxation  and  not  the  fear  of  Popery  which 
maddened  the  colonists  to  the  point  of  rebellion  in  the 
time  of  the  later  Stuarts.  After  the  Great  Revolution 
in  England  the  Whig  statesmen  who  found  it  to  their  in- 
terests to  respect  the  unrepresented  English  nation  had 
wisdom  enough  to  let  the  colonists  alone.  When  the  gov- 
Lernment  of  George  III.  passed  the  Stamp  Act,  in  1765,  it 
[aroused  the  *' sleeping  dog"  in  America.  That  is,  there 
'^as  aroused  in  America  to  an  acute  wakefulness  that  same 
jpirit  which  the  Tudors  had  been  induced  to  respect  in 
[the  ancestors  of  the  colonists,  the  spirit  which  the  Stuarts 
could  not  be  brought  to  regard,  but  resisted  to  their  own 
[undoing ;  the  spirit  which  at  all  times  has  furnished  the 
[moral  and  physical  force  determining  the  fortunes  of  the 
^contending  factions  and  parties  in  England. 

It  is  now  a  commonplace,  both  in  England  and  in 
.America,  that  George  III.  was  the  real  rebel  against  the 
[English  Constitution.  If  George  III.  was  a  rebel  against 
[the  Constitution,  then  the  House  of  Commons  and  the 
English  courts  were  likewise  in  a  state  of  rebellion 
against  it.      In  the  same  sense,  all  of  these  high  gov- 


380     GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xxxviii 

ernmental  agencies  had  been  in  a  chronic  state  of 
rebellion  against  the  English  Constitution  for  several 
centuries.  If  the  Englishmen  who  lived  in  America 
represented  the  real  English  Constitution  in  their  re- 
sistance to  the  tax-collectors  of  George  III.,  then  the 
Englishmen  who  resisted  the  collectors  of  the  taxes 
voted  by  the  Parliaments  of  Henry  VII.  and  Henry  VIII. 
represented  the  real  Constitution.  The  Tudor  kings 
became  real  constitutional  monarchs  when  they  took 
matters  into  their  own  hands  and  ruled  according  to  the 
wishes  of  the  unrepresented  masses.  This  of  course  is 
using  language  with  utter  confusion.  Yet  this  confusion 
is  fitted  to  shed  light  upon  a  most  obscure  subject  in  the 
development  of  the  modern  Constitution. 

It  is  within  the  memory  of  men  who  still  live  that  a 
policy  has  been  adopted  in  the  English  government  of  ex- 
tending the  franchise  to  the  great  body  of  the  tax-payers. 
Preceding  and  coincident  with  this  movement  there  has 
grown  up  the  sentiment  that  it  is  unconstitutional,  and 
immoral  to  resist  the  officers  of  the  government.  The 
sentiment  now  prevails  that  if  there  is  a  grievance  it 
should  be  corrected  in  an  orderly  way  by  the  people's 
representatives.  This  view  when  once  attained  seems 
so  natural  and  so  self-evident  that  it  is  readily  and 
erroneously  accepted  as  the  view  that  had  always  pre- 
vailed. It  is  not  an  easy  matter  for  a  man  to  repent,  to 
form  new  habits,  and  then  to  forget  entirely  his  former 
self.  But  if  a  nation  repents  and  forms  new  habits,  it  is 
almost  sure  to  lose  the  consciousness  of  its  former  self,  — 
almost  sure  to  get  the  notion  that  its  existing  character 
belongs  also  to  the  earlier  times. 

The  historian  ought  always  to  have  perceived  that  until 
recent  times  it  was  just  as  much  in  accord  with  the  moral 
sense  of  the  English  nation  to  resist  certain  acts  of  the 
regularly  constituted  government  as  it  is  now  to  obey 


CHAP.  XXXVIII        TAXATION  AND  THE  NATION  381 

these  acts.  If  this  change  in  the  moral  sense  of  English- 
men could  have  come  to  the  people  without  being  accom- 
panied with  actual  popular  representation  in  the  govern- 
ment, nothing  at  all  resembling  what  we  now  know  as 
the  English  Constitution  could  ever  have  existed.  So 
long  as  the  people  were  not  represented,  the  duty  of 
resisting  regularly  constituted  government  was  kept 
active.  The  American  experience  furnishes  a  good  illus- 
tration of  this.  It  would  have  been  as  absurd  for  the 
American  colonists  to  desire  or  accept  representation  in 
the  English  House  of  Commons,  as  it  was  then  constituted, 
as  to  have  trusted  their  fortunes  to  the  will  of  the  King. 
The  only  representation  which  the  Americans  prized  was 
that  which  they  had  long  enjoyed  in  their  own  local  gov- 
ernments and  colonial  assemblies.  The  intelligent  colonists 
knew  that  the  only  recourse  for  the  aggrieved  English 
tax-payer  was  to  make  war  upon  the  government. 

The  only  way  for  an  Englishman  of  that  date  to  give 
his  consent  to  a  measure  of  taxation  was  by  refrain- 
ing from  taking  up  arms  against  the  tax-collector. 
The  sense  of  the  moral  obligation  to  unite  in  a  common 
resistance  to  acts  of  government  was  kept  alive  from 
generation  to  generation  largely  because  of  the  fact  that 
the  governing  classes  were  always  contending  among 
themselves  and  were  constantly  currying  favour  with  the 
people.  In  the  olden  time,  barons,  clergy,  and  kings  con- 
tended, and  the  nation  favoured  one  or  another  as  occasion 
served.  The  Tudors  favoured  the  nation  as  against  the 
governing  classes.  The  Stuarts  destroyed  the  personal 
supremacy  of  the  monarch  in  a  contest  with  Parliament. 
When  the  Great  Revolution  was  accomplished,  and  the 
Crown  appeared  to  be  placed  in  permanent  subjection 
to  the  two  Houses,  two  political  parties  were  formed  to 
keep  up  the  division  of  the  governing  classes,  and  these 
two  parties  contended  for  supremacy  until  the  nation  was 
enfranchised. 


CHAPTER  XXXIX 

GOVERNMENT  BY  A  DIVIDED   CABINET,   OR  BY   ADMINIS- 
TRATIVE  DEPARTMENTS 

n^HE  great  constitutional  feature  of  the  period  of  the 
-^  first  two  Georges  is  found  in  the  fact  that  the  chief 
ministers  formed  the  habit  of  planning  the  policy  of  the 
government  in  secret  meetings,  apart  from  the  King,  and 
then,  through  the  Prime  Minister,  securing  the  approval 
of  the  Monarch  to  the  policy  agreed  upon.  In  this  way 
some  of  the  essential  features  of  the  modern  Cabinet 
system  were  developed.  During  the  reigns  of  the  last 
two  Georges  the  Cabinet  system,  so  far  as  it  had  been 
developed,  was  thoroughly  tested.  It  was  characteristic 
of  the  early  Georges  not  to  be  greatly  absorbed  in  Eng- 
lish politics.  This  gave  opportunity  for  the  secret  Cabi- 
net to  become  institutional.  When  George  II.  did  try  to 
keep  Pitt  out  of  the  Cabinet,  the  ministers  resigned  and 
forced  him  to  submit.  Later,  in  the  midst  of  the  Seven 
Years'  War,  a  popular  demand  forced  the  King  and  the 
party  leaders  to  admit  Pitt  to  the  first  place  in  the  Min- 
istry. A  characteristic  of  the  later  Georges  was  an 
absorbing  interest  in  English  politics.  They  at  aU  times 
exerted  a  profound  influence  upon  their  Ministers  and 
their  Parliaments,  and  during  a  part  of  the  time  the  rule 
of  the  King  was  almost  absolute. 

It  is  said  that  Bolingbroke  and  other  Tory  leaders  had  a 
hand  in  directing  the  education  of  George  III.     It  is  easy 

382 


CHAP.  XXXIX     GOVERNMENT  BY  A   DIVIDED   CABINET  383 

to  believe  this,  because  it  was  largely  through  the  influence 
of  that  king  that  the  Tory  party  enjoyed  the  advantages  of 
official  patronage  during  the  greater  part  of  seventy  years. 
Moreover,  George  acted  as  if  he  had  been  educated  by 
Tories.  If  James  I.  and  Charles  I.  could  have  reigned 
in  the  place  of  the  last  two  Georges,  they  would  probably 
haA^e  had  a  peaceable  and  comfortable  time.  They  would 
have  been  continually  conscious  of  the  exercise  of  sub- 
stantial powers.  They  would  have  had  an  ample  field  for 
that  exercise  of  intrigue  in  which  they  took  great  delight, 
and  the  success  of  their  intrigues  would  have  been  a  par- 
tial compensation  for  the  high  pretensions  of  divine  right 
which  they  would  have  missed.  James  I.  could  have  seen, 
without  difficulty,  how  such  a  Church  and  such  a  House 
of  Commons  could  be  made  to  agree  with  monarchy. 

George  III.  is  never  called  a  great  man,  yet  he  pos- 
sessed the  faculty  of  doing  the  things  which  he  wanted  to 
do.  Even  during  the  intervals  of  his  prolonged  insanity 
the  King's  policy  was,  in  the  main,  respected  and  carried 
into  effect.  The  elder  Pitt  was  in  the  full  tide  of  a  most 
brilliant  career  when  George  III.  was  crowned.  The  new 
King  obliged  the  Cabinet  to  receive  his  personal  friend. 
Lord  Bute,  and  through  him  he  so  manipulated  the  policy 
of  the  government  as  to  drive  Pitt  out  of  office  in  a  few 
months.  The  question  naturally  arises.  Why  should  the 
new  king  have  so  much  power  when  the  former  king  had 
so  little?  George  II.  began  his  rule  by  changing  his 
politics  and  submitting  to  the  leadership  of  Walpole, 
whom  he  had,  as  Prince  of  Wales,  opposed.  He  con- 
tinued the  policy,  adopted  by  his  father,  of  leaving  the 
business  of  government  to  the  ministers  and  to  the  women 
of  his  household,  postponing  a  trial  of  strength  with  his 
Ministers  until  after  the  death  of  Walpole.  By  that  time 
his  habit  of  yielding  had  become  confirmed  ;  his  Ministers 
gained  an  easy  victory  and  held  their  supremacy  to  the 


384       GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xxxix 

end  of  his  reign.  George  III.  began  his  reign  with  a 
fixed  determination  not  to  be  a  tool  in  the  hands  of  his 
Ministers,  but  to  make  them  a  tool  in  his  own  hands,  and 
in  this  he  achieved  a  high  degree  of  success. 

After  Pitt  and  Newcastle  had  been  virtually  driven 
from  office  through  the  interference  of  the  King,  the  for- 
mation of  a  new  Ministry  was  committed  to  the  hands  of 
Lord  Bute.  The  new  Ministry,  though  some  of  the  Whig 
leaders  were  induced  to  join  it,  was  nevertheless  essentially 
Tory  in  composition.  It  was  evident  to  all  classes  that 
the  King  was  the  real  direciJor  of  the  government  and  the 
dispenser  of  patronage.  By  the  use  of  Walpole's  methods, 
that  is,  by  various  acts  of  royal  prerogative,  the  King  found 
little  difficulty  in  securing  harmony  of  action  in  the  two 
Houses.  But  the  sudden  change  of  policy,  whereby  the 
King  instead  of  the  Ministers  dispensed  the  patronage 
and  directed  the  policy  of  the  State,  raised  such  a  storm 
of  criticism  in  the  country  that  Lord  Bute  was  frightened 
into  the  resignation  of  his  office. 

Three  ministries  then  followed  each  other  in  quick 
succession.  When  the  King's  Ministers  would  not  do 
as  he  wished,  he  was  accustomed  to  organize  an  opposition 
to  his  own  Ministers  and  secure  their  defeat  in  the  two 
Houses.  The  King,  being  the  dispenser  of  patronage, 
could  command  more  votes  than  the  Ministers.  Bitter 
feelings  were  aroused  against  the  Monarch  on  account 
of  this  secret  influence.  It  was  during  this  period  that 
the  Letters  of  Junius  appeared  and  that  the  conflict  with 
the  American  colonies  began.  George  III.  saw  that, 
although  some  of  his  statesmen  called  his  influence 
Satanic,  he  was  really  sacceeding  in  bringing  all  classes 
in  England  under  subjection  to  his  will.  It  seemed  to 
him  a  slight  thing  that  he  should  rule  the  feeble  fragment 
of  his  empire  in  the  New  World.  Pitt  furnished  by  far 
the  greatest  obstacle  to  the  success  of  this  policy ;   but 


CHAP.  XXXIX    GOVERNMENT   BY   A  DIVIDED   CABINET  385 

just  at  the  time  when  his  services  were  most  needed  his 
health  failed,  and  he  was  induced  to  accept  a  peerage. 
This  removed  him  from  the  House  of  Commons  and 
greatly  lessened  his  influence. 

After  three  unsuccessful  attempts  to  get  a  Ministry  to  his 
mind,  the  King  found  in  Lord  North  a  man  after  his  own 
heart.  North  became  Prime  Minister  in  1770  and  re- 
mained in  office  till  1782.  During  this  entire  period 
England  was  governed  by  the  King  ;  the  Cabinet  did  not 
profess  to  have  a  policy  of  its  own.  By  means  of  bribery 
and  patronage,  by  the  creation  of  boroughs  and  peerages, 
and  by  other  acts  of  royal  prerogative,  it  was  an  easy 
matter  to  secure  practical  harmony  with  the  two  Houses. 
During  much  of  this  time  the  nation  seemed  to  be  well 
satisfied  with  the  policy  of  the  government.  For  twelve 
years  the  will  of  the  King  was  almost  absolute.  The 
aristocratic  Whig  Constitution  created  by  Walpole  seemed 
to  be  brought  to  utter  ruin.  The  King  held  in  his  own 
hands  those  agencies  for  securing  votes  which  the  Whigs 
had  formerly  held.  There  remained  only  a  few  Whig 
constituencies. 

For  a  time  after  the  King  had  begun  the  war  against 
the  colonies,  the  few  Whig  members  of  the  House  of 
Commons  absented  themselves  from  Parliament  as,  in 
their  own  view,  the  best  means  of  expressing  their  op- 
position to  the  royal  policy.  Moreover,  not  the  voters 
only,  but  the  great  body  of  the  unrepresented  nation  gave 
their  support  to  the  King's  American  policy,  and  it 
seemed  to  the  intelligent  Whigs  that  if  the  King  should 
succeed  in  reducing  the  colonies  to  submission  he  would 
at  the  same  time  succeed  in  fastening  upon  England  a 
permanent  despotism.  They  saw  in  the  triumph  of  the 
colonies  the  only  hope  of  escape  from  absolutism.  Ameri- 
cans have  difficulty  in  understanding  how  it  is  that  almost 
the  entire  English  nation  of  that  day  was  at  the  time 
2c 


386       GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xxxix 

united  in  the  support  of  George  III.  in  his  efforts  to 
subdue  the  colonies,  while  the  English  nation  of  to-day  is 
united  in  the  reprobation  of  that  policy.  Almost  the 
entire  English  nation  now,  regardless  of  party  affiliations, 
takes  the  same  view  of  the  course  of  George  III.  that  was 
held  by  the  remnant  of  the  Whig  party  at  the  time.  The 
policy  of  the  King  was  subversive  of  the  Constitution  of 
England  as  now  understood,  and  the  success  of  the 
colonies  was  an  important  step  in  preventing  the  new 
form  of  royal  despotism  from  being  fastened  upon  Eng- 
land. 

It  is  a  mistake,  however,  to  suppose  that  there  was  in 
England  any  sudden  and  effective  revulsion  against  the 
policy  of  the  King.  It  is  only  since  the  development 
of  the  democratic  Constitution  in  recent  years  that  the 
policy  of  George  III.  has  come  to  be  universally  con- 
demned by  Englishmen.  At  the  time,  the  attempt  to  sub- 
due the  colonies  was  confused  with  hostility  to  France, 
and  antipathy  toward  the  French  tended  to  unite  the 
nation  in  support  of  the  war  against  the  colonies.  Yet, 
as  disasters  multiplied,  and  the  failure  of  the  King's  policy 
became  apparent,  the  Whigs  gathered  strength  in  Parlia- 
ment. In  1780  a  resolution  was  carried  in  the  Commons 
"  that  the  power  of  the  Crown  has  increased,  is  increasing, 
and  ought  to  be  diminished."  The  next  year  Cornwallis 
surrendered  to  George  Washington.  Upon  the  news  of 
this  disaster  a  motion  in  favour  of  peace  lacked  only  one 
vote  of  receiving  a  majority,  and  Lord  North's  Ministry 
resigned. 

With  the  resignation  of  Lord  North  in  1782,  the  twelve 
years  of  absolute  kingly  rule  came  to  an  end.  This  period 
is  peculiar  in  that  the  Ministers  did  not  profess  to  have  a 
policy  of  their  own.  They  were  simply  the  King's  Min- 
isters to  execute  the  King's  policy.  Notwithstanding  the 
disastrous  failure  of  his  policy,  George  III,  had  no  inten- 


CHAP.  XXXIX    GOVERNMENT  BY  A   DIVIDED   CABINET  387 

tion  of  surrendering  his  right  to  rule.  He  was  obliged, 
however,  to  accept  a  Whig  Ministry  with  Rockingham 
as  Prime  Minister.  The  Whigs  naturally  expected  after 
such  a  failure  of  kingly  rule  to  succeed  in  making  the 
power  of  the  Crown  less,  in  accordance  with  the  resolu- 
tion which  they  had  previously  carried  in  the  Commons. 
They  did  pass  some  laws  which  tended  to  lessen  that 
power.  In  1782,  for  instance,  a  law  was  enacted  depriv- 
ing government  contractors  of  the  privilege  of  sitting  in 
Parliament,  and  another  statute,  passed  at  the  same  time, 
deprived  revenue  officers  of  the  privilege  of  voting  for 
members  of  Parliament.  It  is  said  that  seventy  seats  had 
been  controlled  by  the  votes  of  revenue  officers.^  Yet  even 
in  this  Whig  Ministry  the  King  succeeded  in  maintaining 
in  office  some  of  his  friends  who  openly  opposed  the 
measures  of  the  Cabinet.  By  carefully  fostering  the 
dissensions  among  the  Whigs  and  by  the  exercise  of  royal 
prerogative  in  opposition  to  the  policy  of  the  Ministers, 
the  King  greatly  weakened  the  Cabinet,  and  upon  the 
death  of  Lord  Rockingham  was  able  to  form  a  Ministry 
controlled  by  men  friendly  to  himself. 

No  sooner  had  he  achieved  this  signal  triumph  than  a 
coalition  was  formed  between  disaffected  Whigs  led  by 
Fox,  and  disaffected  Tories  led  by  Lord  North,  and  the 
Ministry  was  defeated.  For  twenty-three  years  the  King 
had  succeeded  in  governing  by  promoting  party  factions 
among  his  enemies  and  by  imiting  his  friends  with  the 
bonds  of  selfish  interest.  But  now  factions  naturally 
most  hostile  to  each  other  formed  a  union  on  the  basis  of 
antipathy  to  the  King,  and  defeated  his  government.  The 
Ministers,  being  out-voted  in  the  Commons,  resigned. 
The  King  was  determined  not  to  form  a  Ministry  of  those 
leaders  who  had  combined  for  his  defeat.  In  this  emer- 
gency he  strove  to  induce  the  younger  Pitt  to  form  a  Cabi- 
1  Hearn,  The  Government  of  England^  p.  405. 


888        GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xxxix 

net.  Pitt  discreetly  refused  to  do  so.  For  thirty-seven 
days  the  King  ruled  without  Ministers,  but  was  then  forced 
to  submit  to  a  coalition  Ministry  formed  in  March,  1783. 
The  new  Ministry  remained  in  office  till  December  of  the 
same  year.  At  this  time  William  Pitt,  the  son  of  the 
great  Whig  statesman  of  that  name,  who  had  carefully 
noted  the  trend  of  public  sentiment,  yielded  to  the  King's 
desire  for  deliverance  from  the  Coalition  Ministry,  and 
undertook  the  task  of  organizing  a  Tory  government. 
Thus,  by  intrigue  and  by  availing  himself  of  hostile  fac- 
tions in  the  Whig  party,  after  a  trial  of  three  Whig  and 
Coalition  Ministries,  the  King  secured,  in  less  than  two 
years,  a  Tory  Ministry  with  the  son  of  Lord  Chatham,  at 
its  head. 

Pitt  remained  Prime  Minister  for  seventeen  years.  It 
cannot  be  said  of  him,  as  it  was  said  of  Lord  North, 
that  he  had  no  policy  of  his  own.  He  had  a  policy,  and 
for  the  most  part  he  carried  his  policy  into  effect.  Pitt 
was  a  statesman  of  the  first  order.  He  yielded  much  to 
the  prejudices  of  the  King,  but  he  yielded  that  he  might 
rule.  He  began  his  career  as  a  Whig.  In  the  confusion 
of  the  Whig  and  Coalition  factions,  however,  he  came  into 
office  and  formed  a  Ministry  having  in  it  both  Whigs  and 
Tories.  But  the  prejudices  of  the  King  and  the  exigen- 
cies of  party  politics  induced  him  to  rely  for  his  chief 
support  upon  the  Tories. 

The  first  few  months  of  Pitt's  Ministry  are  memorable 
for  a  contest  which  exhibits  the  peculiar  relations  of  the 
Cabinet  to  the  King,  to  the  two  Houses,  and  to  the  vot- 
ing constituency.  No  dissolution  of  Parliament  occurred 
at  the  time  of  the  change  of  Ministry.  '  The  Prime  Min- 
ister had  the  support  of  the  King  and  of  the  House  of 
Lords.  A  large  majority  in  the  House  of  Commons  was 
against  him,  and  he  believed  that  the  voting  constituency 
at  the  time  was  hostile  to  him,  though  he  expected  that  it 


CHAP.  XXXIX    GOVERNMENT  BY  A  DIVIDED  CABINET  389 

would  in  a  few  months  turn  in  his  favour.  If  he  dissolved 
Parliament  at  once,  he  would,  as  he  thought,  be  defeated 
by  the  voters.  If  he  remained  in  office,  he  had  to  brook 
a  hostile  House  of  Commons.  This  last  he  determined  to 
do.  Twelve  votes  were  passed  by  the  Commons,  each  of 
which,  interpreted  according  to  modern  constitutional 
ideas,  ought  to  have  caused  the  Ministers  to  resign  or  to 
dissolve  Parliament.  They  did  neither.  Yet  the  major- 
ity against  them  diminished  in  the  Commons,  and  when 
the  House  was  dissolved,  Pitt  secured  a  large  majority  in 
the  new  Parliament. 

It  will  be  observed  that  this  conduct  of  the  Premier 
was  in  violation  of  the  principles  of  Cabinet  govern- 
ment as  established  by  Walpole  —  principles  which  did 
not  permit  the  House  of  Commons  to  retain  a  hostile 
majority.  Walpole  used  an  obedient  House  of  Lords 
to  shield  him  from  the  hostility  of  the  Commons  and 
the  people.  Pitt  had  also  an  obedient  House  of  Lords, 
but  he  saw  no  way  of  immediately  securing  the  subservi- 
ency of  the  Commons.  He  was  afraid  to  appeal  at  once 
to  the  voters,  and  preferred  to  defy  the  Commons  until  the 
sentiment  among  the  voters,  which  he  believed  was  setting 
in  his  favour,  should  have  time  to  mature.  The  opposition 
was  not  compact  and  harmonious.  It  was  composed  mostly 
of  the  extreme  factions  in  the  two  parties.  Having 
succeeded  in  reducing  the  hostile  majority  to  one  vote, 
Pitt  dissolved  Parliament.  Because  of  the  success  of  his 
plan  for  bringing  the  nation  to  his  support,  Pitt's  conduct 
is  usually  looked  upon  as  in  substantial  harmony  with  the 
spirit  of  the  modern  Constitution.  He  violated  the  Con- 
stitution in  appearance  rather  that  in  reality.  If  in  the 
Victorian  age  a  Cabinet  should  thus  defy  the  House  of 
Commons,  the  fact  itself  would  tend  to  rally  the  nation 
to  the  support  of  the  Commons,  and  the  Cabinet  would 
be  defeated.     It  should  be  remembered  that  at  the  date 


390       GliOWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xxxix 

under  consideration  membership  in  the  Commons  was  in 
large  part  determined  by  the  exercise  of  arbitrary  power 
in  the  hands  of  the  King.  Under  such  circumstances, 
it  could  not  seem  to  be  a  grave  offence  arbitrarily  to  delay 
an  election  for  a  few  months. 

The  contest  between  Pitt  and  the  House  of  Com- 
mons lasted  from  December,  1783,  until  March  of  the 
following  year.  It  is  evident  from  all  the  facts  that  the 
triumph  of  the  Prime  Minister  was  also  the  triumph  of  the 
King  over  his  chief  enemies.  It  was,  in  a  certain  sense, 
a  victory  of  the  Crown  over  the  House  of  Commons. 

This  contest  between  the  Ministry  of  Pitt  and  the 
House  of  Commons  is  likewise  of  constitutional  interest 
because  of  the  special  prominence  which  was  given  to  the 
House  of  Lords.  The  King,  as  we  have  seen,  was  intensely 
hostile  to  the  Coalition  Ministry.  He  threatened  to  go 
to  Hanover  and  leave  England  without  a  king,  rather 
than  submit  to  it.  He  used  all  his  powers  to  defeat  the 
measures  of  his  Cabinet.  He  authorized  Earl  Temple  to 
say  to  the  Lords  that  whoever  should  vote  for  an  Indian 
Bill  which  the  Cabinet  had  introduced  would  be  consid- 
ered his  enemy.  The  Lords  understood  this  to  mean 
that  unless  they  voted  as  the  King  directed  them  to  vote, 
their  friends  would  be  dismissed  from  office  and  they 
would  also  be  punished  in  other  ways.  The  Indian  Bill 
was  thus  defeated  in  the  Lords,  and  immediately  upon  the 
adverse  vote  the  King  forced  the  Ministers  to  resign. 
The  Coalition  Ministry  was  therefore  driven  from  office 
by  the  will  of  the  King  and  by  a  hostile  vote  in  the  House 
of  Lords  obtained  by  means  of  a  royal  threat.  Though 
the  Ministers  still  enjoyed  the  confidence  of  the  Com- 
mons, they  were  forced  to  resign,  and  a  new  Ministry  was 
formed  under  the  leadership  of  Pitt,  who,  as  stated  above, 
defied  the  Commons  for  a  few  months  and  then,  on  an 
appeal  to  the  voters,  secured  a  large  majority. 


CHAPTER  XL 

PITT  AND   THE  CABINET 

"TOURING  the  reigns  of  the  first  two  Georges,  the 
-*-^  Ministers  were  accustomed  to  agree  upon  measures 
in  secret  meetings  apart  from  the  King,  and  then  to 
secure  his  formal  approval.  In  the  few  cases  in  which 
the  Cabinet  differed  from  the  King,  the  latter  was  in- 
duced to  yield.  George  III.  at  no  time  really  yielded 
to  his  Ministers.  If  he  appeared  to  submit,  it  was  that 
he  might  gain  time  to  accomplish  his  object  in  some  other 
way.  During  the  earlier  reigns  the  Cabinet  usually  acted 
together  as  a  unit,  or,  if  there  were  quarrels  among  the 
members,  the  King  had  little  share  in  them.  If  George 
III.  could  not  have  a  Premier  who  represented  his  views, 
he  could  always  have  some  member  in  the  Cabinet  from 
whom  to  secure  secret  information,  and  he  employed 
secret  agents  to  thwart  any  Cabinet  measures  which  he 
did  not  approve.  Previous  to  the  Ministry  of  the  younger 
Pitt,  George  III.  strove  to  govern  not  through  the  united 
responsibility  of  the  Cabinet,  but  through  independent 
administrative  departments.  This,  as  we  have  seen,  was 
especially  manifest  during  the  Ministry  of  Lord  North. 
If  the  King's  policy  could  have  been  thoroughly  carried 
into  effect,  one  of  its  results  would  have  been  to  bring 
to  naught  or  to  forestall  the  development  of  the  secret 
Cabinet  meeting. 

The  seventeen  years  of   Pitt's   Ministry  undoubtedly 

391 


S92         GROWTH  OF  THE  ENGLISH  CONSTITtJTlON      cflAP.  xL 

tended  to  the  restoration  of  some  of  the  features  of  the 
Cabinet  system  which  had  been  effaced  during  the  earlier 
years  of  George  III.  The  circumstances  of  his  induction 
into  office  placed  him  in  an  advantageous  position  in  his 
relations  to  the  King.  He  furnished  to  the  King  the  only 
visible  means  of  escape  from  the  hands  of  the  dreaded 
Coalition  Ministry.  Under  such  conditions  George  was 
not  free,  as  he  had  before  been,  to  use  his  full  prerogative 
for  thwarting  the  will  of  his  Cabinet.  Pitt  was  not  a 
man  of  a  character  so  impressive  as  his  father,  or  of 
qualities  so  spectacular.  Yet  he  had  conspicuous  abih 
ity  as  a  politician  and  a  statesman.  He  was  manifestly 
a  greater  man  than  George  III.  He  could  not,  indeed, 
remain  in  office  without  the  permission  of  the  King ;  but 
while  he  was  in  office,  he  could  not  avoid  giving  the  im- 
pression that  it  was  the  Minister  who  was  ruling  rather 
than  the  King.  A  Cabinet  meeting  with  Pitt  at  its  head 
could  not  be  other  than  an  institution  of  importance. 

While  in  opposition,  Pitt  had  committed  himself  to 
various  measures  of  reform,  and  when  he  came  into  office 
he  felt  bound  to  fulfil  his  pledge  to  reform  Parliament. 
He  accordingly  introduced  a  bill  for  reforming  the  vot- 
ing constituencies  which  provided  for  the  destruction  of 
many  of  the  rotten  boroughs  and  the  distribution  of  their 
seats  to  the  counties  and  to  London.  King  George  was 
decidedly  opposed  to  these  changes.  The  rotten  boroughs 
had  been  his  chief  dependence  in  securing  a  subservient 
House  of  Commons.  Pitt  knew  that  it  had  been  the 
habit  of  the  King  to  use  his  influence  to  defeat  those 
measures  of  his  Ministers  which  he  did  not  approve,  and 
to  forestall  this  result  he  sought  the  King's  acquiescence 
before  presenting  the  Reform  Bill  to  the  Parliament,  and 
expressed  a  wish  to  receive  a  definite  assurance  that  the 
royal  influence  would  not  be  used  to  defeat  the  bill  in  the 
Houses.     The  King  replied  in  a  letter  which  manifested 


CHAP.  XL  PITT  AND  THE  CABINET  393 

his  disapproval  of  the  measure.  He  also  denied  the  truth 
of  certain  rumours  to  the  effect  that  he  had  used  secret 
influence  against  Pitt's  Ministry.  Although  promising 
not  to  use  his  influence  to  defeat  the  bill,  he  yet  fore- 
warned the  Minister  that  the  bill  would  be  defeated ; 
and  the  bill  was  defeated.  According  to  modern  consti- 
tutional notions  a  Ministry,  after  such  a  defeat,  would 
usually  resign  or  dissolve  Parliament.  In  this  case  the 
Ministry  simply  gave  up  the  bill  and  remained  in  office. 
The  King's  expressed  views  had  here  prevailed  against 
a  Cabinet  measure.  Yet  it  is  a  positive  step  in  the  direc- 
tion of  the  recovery  and  the  establishment  of  Cabinet 
responsibility  that  the  Prime  Minister  made  a  definite 
issue  with  the  King  on  the  policy  of  using  royal  influence 
against  the  Ministers,  and  secured  from  him  a  promise 
that  such  influence  should  not  be  used. 

Early  in  his  reign,  George  III.  had  been  afflicted  with 
temporary  insanity.  In  1788,  the  malady  returned.  At 
this  time  the  Whig  opposition  was  currying  favour  with 
the  Prince  of  Wales.  There  had  been  a  feud  between  the 
King  and  his  son.  The  Whigs  saw  no  way  of  returning 
to  power  unless  they  could  secure  a  monarch  who  would 
favour  them.  If  the  King  should  become  permanently  in- 
capacitated, it  would  be  necessary  to  set  up  a  regency ;  and 
in  the  natural  course  of  events  the  Prince  of  Wales  would 
be  made  regent.  It  was  apparently  conceded  by  both 
parties  that  if  the  Prince  should  become  regent,  the  Tories 
would  be  turned  out  of  office,  and  the  Whigs  would  be 
restored.  Hence  a  bitter  party  contest  arose  over  the 
regency.  Fox,  as  leader  of  the  Whigs,  maintained  that 
the  "  heir  apparent "  had  an  indefeasible  right  to  assume 
the  reins  of  government.  This  was  a  rather  curious 
Whig  divine-right  theory  growing  out  of  the  exigencies 
of  party  politics.  With  George  III.  as  king,  the  Whigs 
were  as  hopelessly  out  of  office  as  were  the  Tories  dur- 


394         GROWTH  OP  THE  ENGLISH  CONSTITUTION      chap,  xl 

ing  the  two  former  reigns.  In  this  political  emergency 
the  Tories  with  Pitt  as  leader  maintained  that  Parlia- 
ment had  a  right  to  settle  the  regency.  A  bill  was  ac- 
cordingly brought  in,  conferring  the  regency  upon  the 
Prince  of  Wales,  subject  to  certain  restrictions.  First, 
the  Regent  should  not  be  permitted  to  exercise  the  pre- 
rogative of  creating  peerages ;  second,  he  should  not 
grant  pensions  other  than  such  as  were  permitted  by  law  ; 
and  third,  the  custody  of  the  King  should  remain  with 
the  Queen.  Before  these  arrangements  could  be  carried 
into  effect  the  King  recovered. 

While  such  a  contest  as  this  about  the  regency  revealed 
the  dominant  power  of  the  Crown  over  all  other  govern- 
mental agencies,  yet  the  natural  effect  of  such  events  was 
to  strengthen  the  position  of  the  Tory  Ministry  under  the 
leadership  of  Pitt.  In  the  next  century,  after  the  death 
of  both  Pitt  and  Fox,  when  the  King  had  become  per- 
manently insane,  Pitt's  regency  bill  was  revived,  and, 
subject  to  its  provisions,  the  Prince  of  Wales  ruled  as 
regent  until  his  father's  death  in  1820.  But  before  this 
time  the  Prince  had  himself  become  a  Tory,  and  the 
Whigs  secured  no  favour  from  him  either  as  regent  or, 
later,  as  king. 

The  French  Revolution  broke  out  in  1789,  about  the 
time  of  the  recovery  of  George  III.  from  his  illness.  On 
the  national  policy  towards  France  the  Whig  leaders  be- 
came hopelessly  divided  and  confused.  Burke's  attitude 
towards  the  revolutionists  was  that  of  extreme  hostility. 
Fox  was  as  decidedly  in  their  favour.  Pitt,  for  a  time, 
held  to  a  position  of  neutrality  towards  France.  Only  a 
few  years  before,  George  III.  had  carried  England  into  a 
most  ignominious  war  against  France,  which  involved  the 
loss  of  the  American  colonies.  After  this  inglorious 
experience  it  was  but  natural  that  the  King  should  defer 
to  his  able  Premier  in  matters  of  foreign  policy.     Un- 


CHAP.  XL  PITT  AND  THE   CABINET  396 

questionably  the  recovery  of  the  independent  position  of 
the  Cabinet  was  due  in  no  small  degree  to  the  supreme 
importance  of  foreign  affairs  from  1789  to  the  battle  of 
Waterloo.  In  the  conduct  of  foreign  affairs  the  King 
was  an  acknowledged  failure,  and  the  Ministers  reverted 
to  the  habit  of  themselves  formulating  State  policies  and 
merely  securing  the  King's  assent  thereto.  The  wars 
continued  long  enough  for  this  habit  to  become  fixed.  It 
was  not  true,  however,  that  the  King  consciously  yielded 
any  of  his  power  to  his  Ministers,  even  in  matters  relating 
to  the  war  with  France.  Upon  that  subject  his  views 
and  those  of  his  Ministers  usually  coincided  with  the 
preferences  of  the  ruling  classes  in  the  nation.  The 
Ministers  were  able  and  effective  leaders,  and  they  natu- 
rally drew  to  themselves  the  chief  attention  of  the  nation. 
Yet  the  King  persistently  insisted  upon  taking  part  in  all 
the  affairs  of  State,  foreign  as  well  as  domestic.  He  was 
shrewd  enough  to  see  that  his  Ministers  were  receiving 
the  larger  share  of  public  attention,  and  he  grew  more 
and  more  restive  under  the  leadership  of  Pitt.  When, 
therefore,  an  opportunity  arose  for  ridding  himself  of  the 
strong  hand,  George  was  but  too  glad  to  avail  himself 
of  it. 

In  connection  with  the  expulsion  of  Pitt  from  office,  at 
the  end  of  the  seventeen  years  of  his  premiership,  there 
were  events  of  the  utmost  importance  to  an  understanding 
of  the  genesis  of  the  modern  Cabinet  system.  Early  in 
his  Ministry,  Pitt  had  inaugurated  a  policy  for  the  concil- 
iation of  Ireland,  which  had  resulted,  in  the  year  1800,  in 
the  fusion  of  the  Irish  Parliament  with  that  of  England. 
As  a  part  of  this  Irish  policy,  a  promise  had  been  made  of 
the  removal  of  the  political  disabilities  of  English  Roman 
Catholics.  As  early  as  1793,  the  Catholics  of  Scotland 
had  been  relieved  of  various  disabilities,  and  Catholics 
_liad  been  admitted  to  places  in  the  English  army.      In 


396         GROWTH  OF  THE  ENGLISH  CONSTITUTION      chap,  xl 

1795,  the  King  became  aware  of  a  still  more  liberal 
tendency  in  the  Cabinet  towards  Catholics  and  Dis- 
senters, and  strenuously  set  himself  to  resist  it.  His 
judges  gave  some  support  to  his  desires  by  giving  an 
opinion  that  the  King  was  restrained  by  his  oath  of  office 
from  giving  assent  to  measures  of  relief  to  Catholics. 
Pitt  had  determined  to  signalize  the  union  with  Ireland 
by  a  bill  removing  all  the  political  disabilities  of  Catholics. 
For  several  months  the  Cabinet  had  the  measure  under 
secret  consideration.  The  King,  through  secret  communi- 
cation with  the  Ministers,  was  apprised  of  their  plans,  and 
openly  declared  himself  unalterably  opposed  to  the  meas- 
ure. Before  receiving  any  official  communication  from 
his  Ministers  on  the  subject,  he  began  to  organize  an  op- 
position for  their  defeat.  He  let  it  be  known  that  he 
would  consider  any  man  his  personal  enemy  who  should 
support  the  measure  of  his  Cabinet.  He  even  stated  that 
the  framers  of  such  a  measure  might  be  brought  to  the 
gibbet.  Before  he  had  been  consulted  by  his  Ministers,  he 
sent  a  letter  to  the  Speaker,  requesting  him  to  "  open  Mr. 
Pitt's  eyes"  on  the  subject  of  Catholic  emancipation. 
The  Speaker  undertook  the  task,  and,  for  a  time,  it  seemed 
that  an  understanding  might  be  reached.  Pitt,  however, 
was  advised  by  some  of  his  Tory  friends  that  it  would  be 
disastrous  to  the  position  of  the  Ministry  to  yield  to  the 
King  under  such  circumstances;  and  upon  mature  con- 
sideration the  Cabinet  reached  the  decision  that  they 
would  formally  ask  the  King's  advice  on  the  bill,  expect- 
ing, at  the  same  time,  that  he  would  refuse  to  yield  to 
their  wishes. 

Here  was  a  case  where  the  Cabinet  was  secretly  maturing 
a  bill.  The  King,  having  been  made  aware  of  their  pur- 
pose through  some  unauthorized  secret  channel,  attacked 
their  policy  before  the  Cabinet  had  asked  his  advice. 
When  the   Cabinet  finally  determined  formally  to  con- 


CHAP.  XL  PITT  AND   THE   CABINET  397 

suit  the  King,  they  did  so  with  the  expectation  that  he 
would  refuse  to  be  governed  by  their  advice.  Upon  the 
advice  of  Addington,  a  Tory  unfriendly  to  Pitt,  the  King 
made  answer  to  the  Cabinet  that  a  "principle  of  duty 
must  prevent  him  from  discussing  any  proposition  tend- 
ing to  destroy  the  groundwork  of  our  happy  Consti- 
tution." The  King  and  the  Cabinet  both  held  firmly 
to  their  positions,  and  Pitt  resigned.  Thus  the  Minis- 
ter who  had  been  inducted  into  office  by  the  will  of  the 
King  was  likewise  driven  out  of  office  by  the  same  will. 
In  neither  case  was  the  will  of  Parliament  consulted  or 
regarded. 

From  a  superficial  view  the  conclusion  might  be  reached 
that,  since  the  King  appeared  as  powerful  as  ever  there 
had  been  no  constitutional  progress  during  the  Minis- 
try of  Pitt.  But  looking  beneath  the  surface,  a  decided 
advance  may  be  discovered.  Upon  Pitt's  accession  to 
power  the  government  was  in  the  hands  of  executive  de- 
partments which  were  independent  of  each  other,  and 
each  of  which  was  manipulated  and  managed  by  the 
King,  while  the  secret  Cabinet  meeting  had  disappeared. 
When  he  retired  from  office,  the  secret  Cabinet  had  been 
restored.  It  is  a  matter  of  great  constitutional  impor- 
tance that  the  issue  had  been  definitely  raised  between 
the  King  and  the  Cabinet  as  to  whether  or  not  the  Sov- 
ereign should  be  guided  by  the  advice  of  his  Ministers. 
Statesmen  of  all  classes  were  compelled  again  to  consider 
the  ancient  question  of  absolute  government.  When  this 
question  was  rife,  in  the  Stuart  period,  the  battle  ground 
was  the  House  of  Commons.  But  it  had  now  become 
evident  that  both  Houses  of  Parliament  were  subject 
to  the  control  of  the  Executive  through  the  exercise  of 
royal  prerogative.  If  the  Ministers  should  likewise  be- 
come permanently  subject  to  royal  dictation,  there  would 
seem  to  be  no  escape  from  absolutism. 


398         GROWTH  OF  THE   ENGLISH  CONSTITUTION      chap,  xl 

The  mere  raising  of  such  an  issue  and  the  introduction 
of  such  a  discussion  is  of  more  consequence  than  any 
defeat  or  any  victory  over  the  immediate  question  in  dis- 
pute. The  creation  of  the  Cabinet  under  Walpole  coin- 
cided with  the  systematic  control  of  the  two  Houses  by 
royal  prerogative.  In  the  early  part  of  the  reign  of 
George  III.,  he  controlled  not  only  the  two  Houses  by 
royal  prerogative,  but  his  Ministers  as  well.  But,  deter- 
mined as  he  was,  the  King  was  overshadowed  by  the 
Minister  whose  long  and  able  rule  gave  new  life  to  the 
Cabinet  as  a  force  apart  from  the  Monarch.  The  resig- 
nation of  Pitt's  Ministry  upon  an  issue  joined  between 
the  Cabinet  and  the  King  called  attention  to  the  Cabinet 
as  the  most  hopeful  means  of  escape  from  an  absolute 
government. 

It  is  of  constitutional  importance,  also,  that  the  secret 
Cabinet  was  restored  by  a  Minister  who  refrained  from 
the  corrupt  practices  of  the  early  Whig  oligarchy.  Pitt 
was  consistently  opposed  to  corruption.  He  relied  upon 
the  continued  support  of  the  ruling  classes.  The  divi- 
sions in  the  Whig  party,  the  support  of  Burke,  and  the 
exigencies  of  the  war  with  France,  all  tended  to  made  it 
easy  for  the  Premier  to  maintain  his  position.  The  fact 
that  the  secret  Cabinet  was  restored  by  a  Minister  who 
relied  upon  the  opinion  of  a  considerable  number  of  the 
ruling  classes  tended  to  make  the  Cabinet  itself  the  chief 
organ  of  public  opinion.  We  shall  see,  further  on,  that  it 
was  the  Cabinet,  as  an  institution,  apart  from  the  King, 
which  was  finally  made  the  agency  for  effecting  the  great 
reforms  that  prepared  the  way  for  the  democratic  Con- 
stitution of  the  Victorian  Age. 

Mr.  Addington,  who  advised  the  King  in  respect  to  the 
policy  which  led  to  the  resignation  of  Pitt  in  1801,  was 
placed  at  the  head  of  the  new  Ministry.  The  King  mani- 
fested great  pleasure  upon  his  deliverance  from  the  strong 


CHAP.  XL  PITT  AND   THE   CABINET  399 

government  of  the  great  Minister,  and  exhibited  in  his 
official  utterances  unusual  affection  for  his  new  Premier. 
The  nation,  however,  saw  in  the  new  Ministry  a  weak 
government,  while  the  state  of  affairs  on  the  Continent 
demanded  vigour  and  power.  It  was  possible  to  form  a 
strong  government  by  putting  the  Whig  leaders  in  office, 
but  the  King  stubbornly  refused  to  form  a  Ministry  of 
which  Fox  should  be  a  member.  Rather  than  do  this,  he 
preferred,  in  1804,  to  restore  Pitt  to  power.  This  led  to 
a  reconsideration  of  the'  question  of  Catholic  Emancipa- 
tion. Three  years  before,  when  this  subject  was  under 
consideration,  Pitt,  upon  being  informed  that  the  in- 
troduction of  that  measure  by  him  had  caused  the  ill- 
ness of  the  King,  had  promised  that  he  would  not  again 
bring  forward  the  bill  during  the  life  of  George  III. 
But  the  King  now  demanded  as  a  condition  of  his  return 
to  office,  that  he  should  pledge  himself  to  abandon  the 
project  absolutely  and  forever.  Pitt  evaded  the  pledge, 
but  exercised  special  care  to  avoid  the  question  and 
restrained  his  friends  from  broaching  the  subject. 

During  Pitt's  second  Ministry,  from  1804  to  1806, 
Addington  appeared  in  Parliament  at  the  head  of  a  party 
of  sixty  or  seventy  members  who  openly  posed  as  the 
"King's  friends."  They  were  so  formidable  that  the 
Prime  Minister  felt  obliged  to  conciliate  them  by  ad- 
mitting the  leaders  to  places  in  the  Ministry.  The  King 
continued  to  take  an  independent  part  in  the  govern- 
ment, using  for  the  purpose  secret  or  unauthorized  agents. 
In  less  than  two  years  Pitt  died.  Affairs  on  the  Con- 
tinent were  in  an  alarming  condition.  Napoleon  had  just 
won  his  great  victory  of  Austerlitz,  and  England  remained 
the  only  nation  of  Europe  capable  of  resisting  his  power. 
The  emergency  forced  the  King  to  call  the  Whigs  to 
office.  His  antipathy  to  Mr.  Fox  disappeared  upon  more 
intimate  acquaintance.     Lord  Grenville  was  made  Prime 


400  GROWTH   OF   THE   ENGLISH  CONSTITUTION      chap,  xl 

Minister.  He  too  felt  himself  obliged  to  provide  offices 
for  the  "King's  friends,"  who  were  still  under  the  leader- 
ship of  Addington,  now  known  as  Lord  Sidmouth.  This, 
it  will  be  seen,  involved  the  union  of  Whigs  and  high 
Tories  in  the  same  Cabinet.  The  Whig  Ministry,  how- 
ever, did  not  escape  conflict  with  the  King.  A  question 
arose  about  the  supervision  of  the  army,  and  the  King  put 
forward  the  astonishing  claim  that  the  Cabinet  had  no 
right  to  interfere  with  the  control  of  the  army.  In  his 
opinion,  control  of  the  army  rested  directly  with  the 
King,  through  the  commander-in-chief.  Lord  Grenville 
got  over  this  point  by  drawing  up  a  minute  stating  that 
no  changes  would  be  effected  in  the  management  of  the 
army  without  the  King's  approval. 

At  this  stage  of  the  history  whenever  a  question  was 
raised  involving  conflict  of  authority  between  the  Cabi- 
net and  the  King  there  was  an  inevitable  tendency  to 
transfer  authority  from  the  King  to  the  Cabinet.  This 
was  true  whoever  won  the  victory  as  to  the  immediate 
question  raised.  Such  a  tendency  grew  out  of  the  logic 
of  the  Constitution.  There  had  been  two  hundred  years 
of  debate,  all  of  which  tended  to  establish  the  conclusion 
that  England  was  not  governed  by  an  absolute  despotism. 
In  the  earlier  part  of  this  conflict  it  was  supposed  that  if 
only  a  government  by  the  use  of  the  two  Houses  of  Par- 
liament should  be  attained,  absolutism  would  thus  be 
avoided.  In  the  later  years  of  George  III.  it  had  become 
evident  that  this  was  a  mistake.  Parliaments  had  become 
accustomed  to  submit  without  resistance  to  royal  dicta- 
tion. The  conclusion  seemed  more  and  more  evident  that, 
if  the  King  was  to  be  restrained  at  all,  it  must  be  through 
his  responsible  Ministers.  Conflict  between  the  new 
Whig  Ministry  and  King  George  resulted  in  its  resigna- 
tion. In  secret  Cabinet  meeting  the  Ministry  matured  a 
measure  which  involved  a  further  removal  of  disabilities 


CHAP.  XL  PITT  AND  THE   CABINET  401 

from  Catholics  and  Dissenters  in  the  army.  This  meas- 
ure was  submitted  in  the  regular  way  by  the  Cabinet  to 
the  King  for  his  approval.  The  Ministers  understood 
that  the  King  gave  his  assent,  and  they  accordingly 
introduced  it  into  Parliament.  Whereupon  the  King 
manifested  violent  opposition  to  the  bill,  and  his  friends 
in  the  Ministry,  who  had  acted  with  the  Cabinet,  openly 
opposed  the  measure  in  Parliament. 

The  Tory  party  saw  in  this  conflict  between  the  Whig 
leaders  a  chance  to  regain  office,  and  a  vigorous  canvass 
was  made  to  this  end.  The  King  was  induced  to  put 
forth  a  statement  to  neutralize  the  claim  of  the  Cabinet 
that  he  had  given  his  assent  to  the  bill  before  it  was  pre- 
sented to  Parliament.  The  Cabinet  saw  that  they  were 
reduced  to  the  alternative  of  withdrawing  the  bill  or 
incurring  defeat,  and  they  determined  upon  its  with- 
drawal. But  the  formal  announcement  to  the  King  of 
their  action  was  accompanied  with  a  remarkable  minute 
of  the  Cabinet,  in  which  the  Ministers  declared  that  in 
case  a  petition  should  be  presented  to  Parliament  for  the 
emancipation  of  Catholics,  they  reserved  the  right  to  act 
upon  it  in  accordance  with  their  own  convictions ;  and 
they  also  made  formal  declaration  of  the  right  to  submit 
to  the  King,  from  time  to  time,  such  advice  as  they 
should  deem  fit.  This  threw  the  King  into  a  furious 
rage,  and  he  demanded  that  the  minute  should  be  with- 
drawn and  that  the  Ministers  should  submit  a  written 
pledge  that  they  would  never  under  any  circumstances 
propose  to  him  further  concession  to  Catholics,  or  offer 
him  any  advice  whatever  upon  the  subject.  The  Whig 
Cabinet  refused  to  accede  to  this  demand,  and  George 
required  their  resignation. 

All  these  facts  are  of  great  interest  to  one  who  would 
understand  the  genesis  of  the  modern  Cabinet.  A  num- 
ber of  the  characteristics  of  this  struggle  strongly  sug- 
2d 


402         GKOWTH  OF  THE   ENGLISH  CONSTITUTION      chap,  xl 

gest  a  return  to  the  ancient  constitutional  grooves.  The 
two  Houses  of  Parliament  had  again  become  mere  ap- 
pendages to  the  Crown  such  as  they  had  been  for  centuries 
before  the  great  Stuart  debate.  There  was  no  longer  any 
thought  of  looking  to  Parliament  as  a  protection  against 
absolutism.  And  after  all  the  discussion  of  two  hundred 
years,  and  after  all  attempts  to  use  one  legal  institution 
as  a  check  upon  other  legal  institutions  the  real  govern- 
ment was  again  becoming  simple,  personal,  and  undivided.. 
In  the  case  immediately  under  discussion  we  see  a  Whig 
Cabinet  which  had  been  induced  to  admit  to  its  mem- 
bership certain  whilom  Tories  known  as  the  "King's 
friends."  We  see  also  that  this  motley  Ministry  reached 
and  preserved  for  a  time  what  may  be  called  a  corporate 
union  upon  most  of  the  political  contentions  of  the  day ; 
and  such  was  the  general  conviction  of  the  necessity  for 
united  harmonious  action,  that,  for  the  time  being,  even 
George  III.  gave  his  assent  to  a  measure  which  he  ab- 
horred, removing  the  disabilities  of  Catholics  and  Dis- 
senters. It  is  true  that  in  this  particular  instance  the 
corporate  union  of  the  opposing  elements  in  the  Cabinet 
carrying  with  it  the  acquiescence  of  the  Crown  was  tem- 
porary and  ineffectual,  yet  it  pointed  toward  that  feature 
of  the  Constitution  which  a  little  later  became  well  estab- 
lished and  permanent. 

It  will  be  remembered  that  during  the  long  rule  of 
Walpole  the  Cabinet  was  a  constant  scandal  and  reproach. 
The  Prime  Minister  was  continually  under  the  necessity 
of  denying  or  explaining  away  the  fact  that  he  was  at  the 
head  of  a  secret,  unauthorized  body  which  was  responsible 
for  the  government  of  the  country.  But  before  the  com- 
ing in  of  the  last  Whig  Ministry  of  George  III.,  the  secret 
Cabinet  with  the  Prime  Minister  at  its  head  had  come  to 
be  openly  recognized  as  the  only  rightful  adviser  of  the 
King.     When  the  Sovereign  sought  advice  from  men  out- 


CHAP.  XL  PITT  AND  THE   CABINET  403 

side  the  Cabinet  or  from  men  within  it  who  were  disloyal 
to  corporate  Cabinet  responsibility,  he  was  looked  upon 
by  leading  statesmen  in  both  political  parties  as  a  violator 
of  the  Constitution.  The  secret  Cabinet  of  Walpole  with 
its  sense  of  corporate  responsibility  had  w^on,  or  was  win- 
ning, complete  political  or  constitutional  recognition,  while 
all  other  advisers  of  the  Monarch  were  condemned  as 
unauthorized,  injurious,  and  unconstitutional. 

The  dismissal  of  the  Whig  Ministry  and  the  formation 
of  a  Tory  government  by  royal  dictation  gave  rise  to  an 
important  debate  in  the  House  of  Commons.  The  debate 
was  upon  a  resolution  introduced  by  Mr.  Brand  "  that  it 
is  contrary  to  the  first  duties  of  the  confidential  servants 
of  the  Crown  to  restrain  themselves  by  any  pledge,  ex- 
pressed or  implied,  from  offering  to  the  King  any  advice 
which  the  course  of  circumstances  may  render  neces- 
sary for  the  welfare  and  security  of  the  empire."  This 
was  of  the  nature  of  a  direct  censure  upon  the  con- 
duct of  the  King.  A  debate  at  such  a  time  over  such 
a  question  could  not  be  other  than  edifying.  It  was 
old  familiar  ground  that  the  King  cannot  be  punished, 
that  whatever  a  king  does  he  must  do  through  a  minister, 
and  that  the  minister  must  assume  the  responsibility  and 
bear  the  punishment  for  any  wrong-doing.  It  appeared 
that  the  King  had  driven  his  Ministers  from  office.  In 
this  act  he  must  have  had  advice.  Mr.  Percival,  who 
was  Chancellor  of  the  Exchequer  in  the  new  Ministry, 
denied  that  the  King  had  conferred  with  any  secret  ad- 
visers before  he  had  dismissed  his  former  Ministers.  If 
this  was  true,  the  King  had  done  a  thing  which,  according 
to  the  theory  of  English  law,  was  -impossible.  In  any 
case,  if  he  had  acted  upon  advice,  it  was  from  a  secret, 
unauthorized  source  which  tended  to  the  subversion  of 
the  government.  Members  of  the  Privy  Council  who 
formed   the   Cabinet   were   regarded   as   the    authorized 


404         GROWTH   OF  THE   ENGLISH  CONSTITUTION      chap,  xl 

advisers  of  the  King.  It  was  urged  that  the  Privy  Coun- 
cillors are  bound  to  advise  the  King  on  all  matters  per- 
taining to  the  welfare  of  the  State.  If  a  Privy  Councillor 
should  pledge  himself  to  refrain  from  advising  the  King 
on  any  matter  that  might  become  of  interest  to  the  State, 
he  would  thereby  violate  his  oath  as  a  Privy  Councillor. 
Some  of  the  speakers  went  so  far  as  to  state  that  if  the 
Ministers  should  make  such  a  pledge  as  the  King  de- 
manded, they  would  be  guilty  of  a  high  crime  and 
misdemeanour. 

There  was  one  item  in  the  Cabinet  minute  which  was 
severely  criticised.  That  was  the  intimation  on  the  part 
of  the  Cabinet  of  an  intention  to  support  a  measure 
which  might  come  before  Parliament  by  petition,  but 
which,  through  deference  to  the  King's  wishes,  the 
Cabinet  had  itself  withdrawn  from  Parliament.  This, 
it  was  claimed,  would  have  the  effect  of  placing  the  King 
and  his  Ministers  in  open  conflict  before  Parliament,  and 
it  was  held  that  the  attitude  of  the  Ministers  was  uncon- 
stitutional. The  King's  Ministers  ought  not  to  place 
the  King  in  a  position  in  which,  through  his  chosen 
advisers,  the  Cabinet,  he  should  in  Parliament  seem  to 
favour  a  measure,  and  then,  through  the  advice  of  the 
same  Ministers,  should  exercise  the  veto  against  the  same 
measure. 

This  point  in  the  debate  throws  much  light  upon  the 
process  of  eliminating  the  formal  veto  power  from  the 
prerogatives  of  the  Crown.  The  elimination  of  the  veto 
was  involved  in  the  working  out  of  the  doctrine  that  the 
King  must  perform  all  his  official  acts  through  his  Min- 
isters, together  with  the  now  recognized  theory  of  united 
Cabinet  responsibility.  The  Monarch  must  not  employ 
secret  or  unauthorized  agents.  He  must  act  through  those 
members  of  the  Privy  Council  who  constitute  the  Cabinet. 
These  being  the  sole  advisers  of   the    King,  Parliament 


CHAP.  XL  PITT  AND  THE  CABINET  405 

and  the  nation  have  no  difficulty  in  fixing  the  responsi- 
bility for  his  acts.  According  to  this  theory  the  King, 
through  the  Cabinet,  recommends  legislation,  and,  having 
thus  signified  approval,  he  gives  his  final  sanction  to  the 
measures  adopted  as  a  matter  of  course.  According  to 
this  theory  the  Cabinet  should  direct  and  control  the 
action  of  the  two  Houses.  Whatever  measure  the  Cabi- 
net promotes  or  permits  is  assumed  to  be  likewise  pro- 
moted or  permitted  by  the  King ;  because,  according  to 
the  forms  of  law,  the  Cabinet  is  simply  the  King's  ad- 
visers. For  the  King  to  refuse  to  sign  a  bill  after  it  had 
passed  the  two  Houses  would  be  to  refuse  to  give  effect 
to  a  measure  which,  through  his  Ministers,  he  had  already 
recommended  or  approved.  The  debate  over  the  minute 
of  the  Whig  Cabinet  showed  plainly  that  the  logic  of 
the  modern  Constitution  had  become  clearer.  It  showed 
likewise  that  neither  the  King  nor  the  Cabinet  was  in 
the  habit  of  acting  in  strict  accord  with  the  theory  of 
the  Constitution  as  it  then  existed. 

At  the  end  of  the  debate  in  the  two  Houses  over  the 
conflict  between  the  King  and  his  Ministers,  George  dis- 
solved Parliament,  and  sought  at  the  hands  of  the  voters 
a  vindication  of  his  position.  He  obtained  a  triumphant 
victory,  and  again  found  himself  in  harmony  with  a  Tory 
Ministry.  This  triumph  was  won  by  an  appeal  to  the  old 
anti-Catholic  prejudice  which  had  been  available  for  such 
purposes  ever  since  the  reign  of  Elizabeth.  It  is  never- 
theless true  that  the  ultimate  effect  of  such  a  contest  was 
in  the  direction  of  a  transfer  of  power  from  the  King  to 
the  Cabinet. 

In  1810  George  III.  became  permanently  insane  ;  his 
reign  may,  therefore,  be  said  to  end  at  this  time.  His 
rule  had  already  been  longer  by  four  years  than  the  time 
covered  by  the  reigns  of  the  first  two  Georges.  Those 
reigns  were  characterized  by  the  dominance  of  royal  pre- 


406        GROWTH  OP  THE  ENGLISH  CONSTITUTION      chap,  xl 

rogative  exercised  not  by  the  King,  but  by  a  secret  Cabi- 
net ;  whereas  that  of  George  III.  was  characterized  by 
the  continuance  of  'royal  prerogative  exercised  by  the 
King,  often  in  direct  conflict  with  the  wishes  of  his  Min- 
isters. Yet  before  the  stubborn  will  of  George  III.  ceased 
to  dominate  English  politics,  the  controversy  had  arisen 
which  was  to  result  in  the  transfer  of  the  royal  power, 
first  to  the  Cabinet,  and  finally  to  the  voting  constituency 
of  the  nation. 


CHAPTER  XLI 

I 

^  THE   CABINET  UNDER   GEORGE  IV. 

THE  Prince  of  Wales  was  made  regent  in  1811.  As  it 
had  been  understood  that  the  Prince  was  a  Whig,  it 
was  generally  expected  that  the  Whigs  would  be  called 
into  office.  It  seemed  at  this  time  to  be  a  settled  prin- 
ciple of  the  Constitution  that  a  Ministry  whose  politics 
differed  from  those  of  the  Monarch  could  not  remain  in 
office.  For  fifty  years  George  III.  had  ruled  through 
Tory  ministers  whom  he  approved,  or  through  unauthor- 
ized "King's  friends."  The  Regent  began  his  rule  by 
consulting  with  the  leaders  of  the  Whigs.  He  became 
incensed  at  Earl  Grey,  and  did  not  like  the  haughty 
bearing  of  other  Whig  leaders.  In  anticipation  of  the 
coming  Whig  rule  a  vote  was  carried  in  the  Commons 
|L  favouring  a  change  of  ministers.  Certain  Whigs  were 
E  invited  to  join  the  Tory  Ministry,  but  this  they  refused 
*  to  do.  Whereupon  the  Regent  determined,  to  continue 
the  Tory  Ministry,  and  the  pliable  House  of  Commons 
was  reconciled.     Lord  Liverpool  was  made  Prime  Min- 

Iister  in  1812,  and  continued  in  the  office  till  his  death  in 
1827,  when  he  was  followed  by  another  Tory  Premier. 
There  was  thus  an  uninterrupted  Tory  Ministry  through- 
out the  regency  and  kingship  of  George  IV. 
It  is  interesting  to  observe  that  one  of  the  questions 
which  led  to  the  rejection  of  the  Whigs  by  the  Regent 
was  a  dispute  about  the  places  in  the  royal  household. 
407 


408        GROWTH  OF  THE   ENGLISH  CONSTITUTION      chap,  xli 

The  Whigs  insisted  upon  having  the  King  surrounded  by 
persons  who  would  not  act  against  them.  This  they  may 
be  supposed  to  have  learned  from  the  various  failures  of 
Whig  Ministries  in  the  reign  of  George  III.  This  issue 
was  again  raised  when  Robert  Peel  attempted  to  form  a 
Ministry  at  the  beginning  of  the  reign  of  Victoria. 

During  the  nineteen  years  of  the  rule  of  George  IV. 
as  regent  and  as  king  there  was  a  growing  dissatisfaction 
in  the  nation.  Resolutions  favouring  a  reform  of  the 
Parliament  were  frequently  introduced.  George  IV. 
had,  as  a  Whig,  previous  to  his  regency,  been  supposed  to 
favour  the  extension  of  religious  liberty  to  Catholics,  but, 
as  regent  and  as  king,  he  was  as  earnest  in  his  opposition 
to  those  measures  as  his  father  had  been.  Yet,  in  1829, 
the  year  before  his  death,  a  Tory  Cabinet  forced  him, 
against  the  most  violent  objections,  to  give  his  assent  to 
the  bill  for  Catholic  Emancipation.  The  manner  of  carry- 
ing this  act  of  justice,  which  had  been  delayed  for  two 
generations  by  the  obstinacy  of  kings,  was  an  important 
object  lesson  in  respect  to  the  modern  doctrine  that  the 
monarch  must  act  upon  such  advice  as  may  be  determined 
upon  by  the  Cabinet. 

An  earlier  dispute  had  arisen  in  respect  to  which  the 
King  was  forced  to  make  concessions.  A  bitter  quarrel 
long  existed  between  the  Regent  and  his  wife.  During 
the  regency,  Caroline  remained  on  the  Continent.  By  the 
Regent's  own  order  her  name  was  omitted  from  the  Lit- 
any, and  he  demanded  of  his  Parliament  the  granting  of  a 
divorce.  Canning  left  the  Cabinet  rather  than  be  respon- 
sible for  the  King's  proceedings  against  his  wife.  When 
the  Regent  became  King,  Queen  Caroline  came  to  Eng- 
land and  demanded  her  rights.  The  King  forced  his 
Cabinet  to  proceed  with  the  bill  for  divorce  until  there 
arose  such  an  agitation  in  the  nation  on  the  Queen's 
behalf  as  threatened  a  revolution.     Both  the  King  and 


CHAP.  XLi  THE   CABINET  UNDER   GEORGE   IV.  409 

his  Cabinet  were  compelled  to  recede  from  their  position 
and  to  make  terms  with  the  Queen. 

It  will  be  remembered  that  in  1780,  when  George  III. 
had  carried  England  into  a  disastrous  war  which  was 
threatening  the  loss  of  the  colonies,  a  resolution  was  car- 
ried in  the  Commons  to  the  effect  that  the  power  of  the 
Crown  was  increasing  and  that  it  ought  to  be  diminished. 
In  1822  Brougham  introduced  a  resolution  declaring  that 
the  influence  of  the  Crown  was  destructive  of  the  inde- 
pendence of  Parliament.  In  his  speech  in  support  of  his 
resolution,  Brougham  asserted  that  the  power  of  the 
Crown  had  increased  since  the  passage  of  the  Dunning 
resolution  in  1780.  Such  a  statement  ought  to  be  taken 
with  a  grain  of  allowance.  The  speaker  was  making  a 
political  argument,  and  was  under  the  ordinary  tempta- 
tion to  state  his  case  strongly.  Yet  up  to  the  date  of  the 
Brougham  resolution  it  is  difficult  to  fasten  upon  an  act 
which  indicated  any  loss  of  power  on  the  part  of  the 
Crown.  We  can  say  that  controversies  arose  which,  in 
the  light  of  what  happened  later,  tended  to  diminish  that 
power.  Yet,  in  the  case  of  nearly  every  contest  between 
the  King  and  his  Cabinet,  the  Monarch  won  a  temporary 
victory  over  his  opponents.  The  Queen  had  indeed  com- 
pelled her  husband  to  recede  from  his  position,  but  the 
dispute  involved  the  rights  of  royal  persons  only.  It  was 
not  until  several  years  after  Brougham's  resolution  had 
been  brought  forward  that  the  King  was  forced  against 
his  will  to  sign  the  bill  for  Catholic  Emancipation.  With 
the  death  of  George  IV.,  in  1830,  the  seventy  years  of 
almost  uninterrupted  Tory  rule  came  to  an  end. 

As  stated  by  Professor  Dicey,  when  the  will  of  the 
Monarch  has  been  the  chief  factor  in  the  choosing  of  Min- 
isters, royal  prerogative  has  added  to  the  power  of  the 
Crown.  Certainly  during  the  reigns  of  the  last  two 
Georges,  royal  prerogative  exercised  by  the  free  will  of 


410       GROWTH  OF  THE   ENGLISH  CONSTITUTION      chap,  xli 

the  monarchs  did,  for  the  most  part,  determine  the  selec- 
tion of  Ministers,  and  royal  prerogative  exercised  in  the 
same  way  did  give  to  the  Ministers  their  needed  votes  in 
Parliament.  During  the  reigns  of  the  first  two  Georges, 
Ministries  were  made  up,  not  so  much  by  the  free  and 
independent  will  of  the  Monarch  as  by  the  dominant 
faction  in  the  Whig  party.  During  this  period  a  secret 
Cabinet  was  formed  and  became  institutional.  At  the 
death  of  George  IV.  this  same  secret  Cabinet  was  still 
preserved  and  became  the  mouth-piece  of  the  nation  in  the 
subjection  of  the  Monarch,  and  in  the  subjection  of  the 
House  of  Lords  to  the  will  of  the  nation.  Before  attempt- 
ing to  trace  the  development  of  the  Constitution  during  and 
after  the  great  reform  of  1832  it  is  desirable  to  show  how 
the  state  of  political  parties,  the  industrial  situation,  and 
the  growth  of  public  opinion  had  made  reform  inevitable. 


CHAPTER   XLII 

POLITICAL  PARTIES   PREVIOUS   TO   1832 

ny /TANY  of  the  relations  which  now  subsist  between 
•^-^  the  Cabinet,  the  Crown,  and  the  two  political 
parties  were  wanting  previous  to  the  Reform  Act  of  1832. 
Until  an  independent  voting  constituency  was  created, 
parties  could  not  be  held  together  by  common  beliefs  and 
opinions.  They  were  controlled  rather  by  mere  factions 
which  contended  for  the  spoils  of  office. 

The  distribution  of  the  spoils  of  office  has  never  been  a 
peaceful  and  agreeable  business.  There  are  sure  to  be 
those  who  think  that  they  do  not  get  their  full  share. 
During  the  entire  period  in  which  Cabinets  were  main- 
tained and  majorities  were  secured  by  the  use  of  patronage 
there  were  constant  feuds  and  divisions  in  the  political 
parties.  The  long  rule  of  Walpole  was  terminated  by 
factions  in  the  Whig  party,  and  the  continuance  of  such 
differences  enabled  the  later  Georges  to  gain  easy  victories 
over  the  Whigs.  There  were  also  factions  among  the 
Tories.  Lord  North,  after  years  of  abject  submission  to 
the  will  of  the  King,  led  a  section  of  the  Tories  who  united 
with  a  section  of  the  Whigs  under  Fox,  and  for  a  brief 
space  forced  upon  the  King  a  hated  Coalition  Ministry. 
Burke  greatly  strengthened  the  Tory  Ministry  of  Pitt  by 
leading  a  section  of  the  Whigs  to  its  support.  Canning 
was  all  the  time  on  the  point  of  deserting  the  Tory  party 
during  the  last  twenty  years  of  its  rule.     When  he  was 

411 


I 


V 


412        GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xlii 

made  Premier,  in  1827,  the  Duke  of  Wellington  and  other 
leading  Tories  refused  to  join  his  Ministry,  and  the  fol- 
lowers of  Canning  were  ready  to  join  the  first  Whig 
Ministry  which  was  formed  after  the  death  of  George  IV. 

The  prevalence  of  these  divisions  made  it  impossible  for 
Cabinets  to  hold  together  according  to  the  modern  ideal, 
and  rendered  necessary  frequent  readjustments  in  Minis- 
tries. In  the  contests  between  the  Cabinet  and  the  Crown 
during  the  later  years  of  the  reign  of  George  III.  there 
was  developed  a  strong  sense  of  Cabinet  unity  and  re- 
sponsibility, though  its  members  were  not  yet  felt  to  be 
all  mutually  responsible  for  each  other,  in  the  modern 
sense,  and  so  related  as  to  stand  or  fall  together.  Wal- 
pole  having  been  defeated  by  a  vote  in  the  Commons  in 
1742  resigned  office,  while  his  associates  remained  in  the 
Cabinet  until,  twenty  years  later,  they  were  driven  out  by 
George  III.  For  a  hundred  years  from  that  time  we  note 
gradual  changes  in  the  position  of  the  Cabinet,  but  the 
modern  notion  of  the  corporate  responsibility  of  the  entire 
Cabinet  has  been  perfected  only  since  the  reform  of  1832. 

During  the  first  ten  years  of  the  reign  of  George  III. 
it  was  his  declared  policy  to  choose  "  good  men  "  as  his 
Ministers,  regardless  of  their  party  affiliations.  It  was 
observed,  however,  that  a  good  man  who  was  a  Tory  was 
more  likely  to  receive  favour  than  one  who  was  a  Whig, 
though  the  Whigs  were  at  this  time  too  strong  to  be 
entirely  excluded  from  the  royal  service.  But  a  Ministry 
which  was  wholly  subject  to  the  King's  will  was  known 
as  a  Tory  Ministry,  and  George  no  longer  looked  to  the 
Whigs  for  officers  or  pensioners.  So  long  as  the  King 
governed  according  to  his  own  notions  he  entirely  dis- 
pensed with  the  secret  Cabinet  meetings.  Each  minister 
was  directly  responsible  to  him.  The  government  was 
administered  by  means  of  departments  independent  of  one 
another.     It  was  thus  a  personal  government  of  the  Mon- 


CHAP.  xLii       POLITICAL  PARTIES  PREVIOUS  TO   1832  413 

arch,  who  used  the  royal  prerogative  to  carry  elections 
and  to  secure  votes  in  Parliament. 

From  the  standpoint  of  the  Whig  doctrines,  the  rule  of 
George  III.  in  the  time  of  the  Ministry  of  Lord  North 
seemed  manifest  proof  of  the  sacrifice  of  all  that  had  been 
gained  by  two  hundred  years  of  contention.  The  case, 
too,  looked  all  the  more  hopeless  because  the  ruling  classes 
in  the  nation  were  in  accord  with  the  King.  The  King 
was  in  possession  of  the  agencies  for  harmonizing  the  two 
Houses  and  the  constituencies,  —  a  power  which  for  the 
two  generations  previous  had  been  wielded  by  the  great 
Whig  families.  Walpole's  political  machine  had  now 
passed  into  the  hands  of  George  III.  The  Whig  party 
was  humiliated  and  placed  in  a  hopeless  minority.  The 
Tory  party  had  come  after  long  waiting  into  full  posses- 
sion of  the  government.  From  the  Whig  standpoint  the 
only  escape  from  absolutism  was  through  an  appeal  from 
the  government  of  the  King  to  the  unrepresented  English 
nation.  The  Englishmen  who  lived  in  America  took  the 
first  brunt  of  this  conflict  in  the  case  of  the  Stamp  Act 
of  1765 ;  and  the  early  resistance  of  the  American 
colonies  coincided  with  popular  uprisings  in  England 
encouraged  by  Whig  leaders. 

The  Coalition  Ministry  of  1782  is  of  interest  not  alone 
for  the  contribution  it  furnishes  to  the  study  of  the  rela- 
tions of  the  Crown  to  the  Ministry  and  to  the  two  Houses, 
but  also  because  of  its  relation  to  the  political  parties. 
It  is  impossible  to  maintain  healthy  party  life  without  an 
independent  voting  constituency  to  which  the  parties  may 
appeal.  The  distribution  of  patronage  naturally  promotes 
faction.  Within  about  a  year  after  the  resignation  of 
Lord  North  and  the  formation  of  a  Whig  Ministry,  on 
account  of  divisions  in  the  Whig  party  and  the  manipula- 
tions of  the  King,  no  party  was  strong  enough  to  command 
a  majority  in  the  House  of  Commons.     This  was  a  state 


414        GROWTH  OF   THE   ENGLISH  CONSTITUTION    chap,  xlii 

of  affairs  which  the  King  was  wont  deliberately  to  create 
in  the  earlier  years  of  his  rule  because  it  enabled  him  to 
combine  in  the  Ministry  men  from  different  factions  in 
such  a  way  as  to  control  their  action,  or,  at  least,  to  pre- 
vent them  from  uniting  in  a  secret  Cabinet  and  enforcing 
a  policy  which  he  disapproved.  But  in  1783,  the  King 
was  astonished  when  a  section  of  the  high  Tories  under 
Lord  North  united  with  a  section  of  the  radical  Whigs 
under  Mr.  Fox  and  thus  gained  control  of  the  House  of 
Commons.  This  union  of  the  extremists  in  opposing 
parties  was,  however,  a  rather  natural  result  of  the  King's 
policy  of  selecting  the  officers  of  government  from  "  good 
men  "  regardless  of  party. 

The  people  were  scandalized  to  see  men  united  in  the 
Ministry  who  had  been  bitterly  opposed  to  each  other 
only  a  few  months  before,  and  even  the  King  was  now 
induced  to  profess  an  abhorrence  of  such  an  unholy  alli- 
ance. In  order  to  dislodge  this  Coalition  government,  an 
agitation  was  started  against  it  which  continued  for  sev- 
eral months.  In  this  the  King  took  an  active  part.  The 
movement  was  based  upon  the  high  moral  assumption  that 
it  was  wrong  for  Tories  and  Whigs  to  be  united  in  the 
same  Ministry.  The  public  was  led  to  believe  that,  for 
the  spoils  of  office  and  to  gratify  worldly  ambition,  these 
statesmen  had  sacrificed  their  political  principles.  This, 
it  will  be  observed,  squarely  contradicted  the  earlier  claims 
of  the  King.  It  was  his  boast  that,  regardless  of  party, 
a  king  would  make  use  of  suitable  men  to  fill  the  offices 
of  State.  The  campaign  which  resulted  in  the  humilia- 
tion and  defeat  of  the  Coalition  Ministry  may  be  held  to 
have  been  an  important  step  in  fixing  in  the  minds  of  the 
people  the  conviction  that  there  is  a  real  difference  be- 
tween a  Whig  and  a  Tory,  and  that  to  unite  leaders  from 
the  two  parties  in  the  same  Cabinet  is  inconsistent. 

This   campaign  against  the   Coalition  Ministry  led  to 


CHAP.  XLii      POLITICAL  PARTIES  PREVIOUS  TO  1832  416 

the  triumph  of  Pitt,  whose  Ministry  restored  the  secret 
Cabinet  to  a  place  of  importance,  and  raised  and  defined 
issues  between  the  Cabinet  and  the  King  which  tended 
to  transfer  power  from  the  King  to  the  Cabinet.  The 
same  Ministry  was  also  especially  important  because  of 
its  relation  to  the  political  parties.  Pitt  was  not  a  Tory 
by  birth  nor  by  political  convictions,  but  rather  by  acci- 
dent or  by  circumstances.  He  had  been  passed  by  in 
the  formation  of  the  Whig  Ministry  of  1782,  when  he 
might  have  been  admitted,  but  became  a  member  of  the 
Shelburne  Cabinet  which  the  Coalition  Ministry  drove 
into  opposition  in  1783.  One  could  oppose  the  Coalition 
Ministry  without  defining  his  party  preferences,  and  Pitt 
was  induced  to  take  the  leadership  in  that  opposition. 
The  Coalition  agitation  was,  however,  unfavourable  to 
the  idea  of  a  mixed  Ministry.  The  King  and  Pitt  were 
at  one  in  their  desire  to  overthrow  the  Coalition.  By 
the  force  of  these  circumstances  Pitt  found  himself  at 
the  head  of  a  government,  the  great  body  of  whose  sup- 
porters were  Tories.  Yet  he  never  professed  to  change 
his  political  principles.  He  still  strove  to  promote  reforms 
which  he  had  advocated  as  a  Whig ;  and  he  led  into  the 
Tory  party  many  men  of  like  opinions  with  himself. 

Before  the  Ministry  of  Pitt,  Dissenters  had  been  Whigs. 
Some  of  them  now  followed  that  leader  into  the  Tory 
party.  Nearly  all  of  the  commercial  and  manufacturing 
classes  had  likewise  been  Whigs.  Pitt  won  the  confi- 
dence of  these  classes  also  to  a  remarkable  degree.  The 
Tory  party  could  never,  after  his  Ministry,  be  quite  what 
it  had  been  before.  It  ever  after  contained  a  larger  share 
of  the  independent  statesmen  of  the  country.  Some  au- 
thors have  gone  so  far  as  to  maintain  that  the  relative 
positions  of  the  parties  changed  places  during  this  period. ^ 

1  For  discussion  of  the  position  of  parties,  see  Lecky,  England  in  the 
Eighteenth  Century,  Vol.  I.,  p.  2,  also  p.  512. 


416        GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xlu 

It  is  difficult,  however,  to  make  good  such  an  assertion. 
Although  it  was  a  Tory  Ministry  which  abolished  the  Test 
Act  and  the  Corporation  Act  in  1828,  it  remained  true 
that  the  majority  of  the  Dissenters  and  of  the  trading  and 
manufacturing  classes  held  with  the  Whigs,  while  a 
majority  of  those  opposed  to  change  in  Church  and  State 
remained  with  the  Tories. 

A  transfer  of  population  and  a  reorganization  of  indus- 
tries took  place  between  1750  and  1832  which  greatly 
affected  political  issues,  and  had  a  marked  effect  upon  po- 
litical parties.  1  The  value  of  coke  in  the  reduction  of  iron 
ore  was  discovered  about  1750.  Coal  and  iron  are  found 
in  the  Midlands  and  in  the  north  of  England.  In  the 
absence  of  cheap  transportation,  the  location  of  the  work- 
ers near  the  heaviest  materials  for  manufacture  was  a 
necessity,  and  the  development  of  iron  manufacture  was 
accompanied  by  a  transfer  of  population  from  the  south 
of  England  to  the  north.  The  farm  labourer  became  a 
worker  in  the  factory  or  the  mines.  The  case  for  parlia- 
mentary reform  was  strong  even  before  the  transfer  of 
population  and  the  changes  of  occupation.  But  with  the 
creation  of  great  manufacturing  centres  wholly  without 
representation  in  Parliament,  while  the  forsaken  boroughs 
were  left  quite  vacant,  or  with  but  a  very  small  population, 
though  they  still  sent  two  members  each  to  Parliament, 
the  case  for  reform  was  greatly  strengthened. 

The  wonder  is  that  the  government  could  have  so  long 
withstood  the  demand  for  reform.  The  Whig  "  machine," 
which  had  been  created  and  used  by  Walpole,  was  any- 
thing but  an  agency  for  reform.  Walpole's  chief  en- 
deavour had  been  to  keep  the  country  quiet.  He  would 
let  no  disturbing  agitation  arise.  It  is  true  that  some  of 
the  Whigs,  —  notably  the  elder  Pitt,  —  who  were  active 
in  driving  Walpole  from  office,  held  views  adverse  to 
1  Toynbee,  Industrial  Bevolution,  Chap.  IL 


CHAP.  XLii     POLITICAL  PARTIES  PREVIOUS  TO  1832  417 

his  on  questions  of  reform  ;  yet  these  were  not  able  to 
control  the  party.  The  Whigs  expected  the  Dissenters 
who  had  votes  to  cast  them  for  their  candidates  ;  yet 
they  would  not  repeal  the  offensive  acts  of  Parliament 
passed  in  the  persecuting  days  of  Charles  II.  The  Wal- 
pole  plan  of  keeping  things  quiet  controlled  the  Whig 
party  in  its  domestic  policy  till  George  III.  drove  them 
from  power. 

The  party  had  done  nothing  which  was  fitted  to  win 
the  support  of  the  unrepresented  masses  of  the  people. 
The  original  Whig  programme  was  to  limit  the  Mon- 
arch, and  to  bring  to  naught  the  Tory  claims  of  the 
divine  right  of  kings.  It  did  not  include  the  extension 
of  political  power  to  the  unrepresented  English  nation. 
The  Whig  leaders  did  as  barons  and  bishops  had  done 
in  earlier  times :  they  promised  favours  to  discontented 
classes  in  order  to  get  the  physical  force  necessary  to 
accomplish  their  ends.  When  the  Stuart  family  was 
excluded  from  the  throne,  and  kings  were  installed  who 
left  the  government  to  the  Whig  aristocracy,  the  original 
Whig  programme  had  been  fulfilled,  and  no  new  one  was 
formed.  The  negative  policy  of  the  Whig  aristocracy, 
which  followed  the  accession  of  the  house  of  Hanover, 
tended  to  render  the  party  unpopular.  The  first  Georges 
did  not  win  the  favour  of  the  people.  If  the  deposed 
Stuart  family  could  have  furnished  a  candidate  for  the 
throne  who  was  not  personally  objectionable,  George  II. 
might  have  been  easily  removed.  George  III.,  however, 
was,  apart  from  his  political  opinions,  at  least  a  worthy 
man.  He  was  also  an  Englishman,  and  he  certainly  won 
the  lasting  regard  of  a  large  part  of  the  nation. 

It  was  not  until  the  Whigs  had  been  driven  into  oppo- 
sition by  the  revived  Tory  party  under  the  leadership  of 
George  III.  that  the  reforming  portion  of  the  party  be-  i/ 
came  its  controlling  element.     The  triumphs  of   Wilkes 
2b 


418        GROWTH   OF  THE   ENGLISH   CONSTITUTION    chap,  xlii 

were  due  in  large  part  to  the  patronage  of  Whig  leaders. 
Wilkes  won  the  last  of  his  great  triumphs  in  1774,  just  at 
a  time  when  the  King  and  the  Tories  were  becoming  ab- 
solute in  the  control  of  the  government.  These  triumphs 
did  not,  however,  turn  to  the  immediate  advantage  of  the 
Whig  party.  Wilkes  was  a  successful  leader  of  mobs, 
but  he  was  not  a  statesman.  Two  years  after  Wilkes 
was  in  undisputed  possession  of  his  seat  in  the  House, 
the  Whig  leaders  were  so  discouraged  that  they  seceded 
from  Parliament.  The  Wilkes  incident  proves  that 
there  was  sufficient  discontent  in  the  nation  to  drive 
the  King  and  his  party  from  power,  if  only  it  had  been 
organized  and  utilized.  The  Whig  party  could  not  lead 
the  mob.  Wilkes  could  lead  it  with  telling  effect  only  so 
long  as  he  was  persecuted,  and  so  long  as  he  held  up  to 
view  a  tangible  result  to  be  attained ;  for  the  English 
mob  does  not  usually  take  effective  action  until  it  has  a 
stopping-place  in  view.  The  seating  of  Wilkes  and  the 
securing  to  printers  of  the  right  to  publish  parliament- 
ary proceedings  were  convenient  stopping-places.  For 
the  accomplishment  of  these  objects  the  mob  was  irre- 
sistible. The  Whig  leaders  knew  that  England  was 
being  governed  by  the  will  of  the  King ;  and  they  knew 
that  in  former  reigns  government  had  been  according 
to  the  will  of  the  Whig  aristocracy.  It  was  not  possible 
to  get  the  English  mob  to  take  a  lively  interest  in  this 
distinction. 

The  difficulty  of  effective  political  leadership  was  un- 
doubtedly increased  by  the  fact  that  the  population  was 
shifting.  The  physical  power  which  was  gathering  in 
mine  and  factory  was  not  organized  as  a  political  force. 
Wilkes  secured  his  most  effective  mobs  in  London  and  the 
adjacent  region  to  the  south  —  the  ancient  haunts  of  riot 
and  revolution.  The  London  mobs  were  supported  by 
demonstrations  in  other  parts  of   the  country,  but  they 


CHAP.  XLii      POLITICAL  PARTIES  PREVIOUS   TO   1832  419 

received  little  help  from  the  people  in  the  new  centres 
of  population.  A  few  years  later  the  capitalist  classes  in 
the  new  industrial  centres  were  quite  content  with  the 
policy  of  Pitt  and  the  Tory  Ministry.  The  long  wars 
with  France  created  a  market  for  goods.  Merchants, 
contractors,  manufacturers,  and  the  wealthier  classes  gen- 
erally, grew  richer  as  a  result  of  the  wars.  These  were 
content  to  support  a  government  which  suppressed  riots 
at  home  and  prosecuted  the  war  abroad.  Beginning  with 
the  Ministry  of  Pitt,  the  Tory  party  was  the  gainer  be- 
cause of  the  almost  undivided  support  of  the  wealthy 
classes.  The  poor,  the  wage-earners  in  the  new  indus- 
tries, who  were  the  greatest  sufferers  from  the  wars, 
being  without  organization  and  without  leaders,  could 
only  express  their  views  by  brutal  riots  which  were  easily 
suppressed. 

It  was  something  new  in  English  history  to  see  the 
influential  classes  so  nearly  united  against  the  poor  and 
the  helpless  as  was  the  case  for  twenty  years  from  the 
beginning  of  the  French  Revolution.  It  had  been  of  the 
very  essence  of  the  constitution  of  English  society  that 
the  powerful  classes  should  be  divided,  and  that  the 
rival  forces  should  become  accustomed  to  gain  support 
by  promising  favours  to  the  less  fortunate.  The  first 
effect  of  the  French  Revolution  upon  the  English 
government  was  to  unite  the  powerful  classes.  This 
brought  about,  for  the  time  being,  a  state  of  affairs  in 
England  similar  in  kind  but  not  in  degree  to  that  which 
produced  the  Revolution  across  the  Channel.  In  France, 
society  had  divided  horizontally,  and  the  burdens  were 
sliifted  upon  the  helpless  under-stratum  until  the  day  of 
vengeance  was  matured.  In  England,  a  powerful  class 
had  always  been  pitted  against  other  powerful  classes,  and 
the  less  fortunate  had  not  been  hopeless  because  they 
had  always  enjoyed  the  favour  of  some  of  the  stronger 


420        GROWTH  OF  THE   ENGLISH   CONSTITUTION    chap,  xlii 

orders.     The  vertical  division  of  society  did  not  utterly 
crush  the  lowest  ranks. 

It  was  forty  years  after  Mr.  Burke  had  joined  the  Tory 
party  and  had  become  a  supporter  of  the  policy  of  re- 
pression, before  a  popular  movement  became  strong 
enough  to  force  upon  the  government  a  new  political 
policy.  Except  for  a  few  months,  this  was  a  period  of  con- 
tinuous Tory  rule.  Yet  the  Whig  party  was  not  disbanded. 
Many  of  the  hereditary  Whig  families  remained  faithful, 
and  the  Whig  opposition  exercised  at  all  times  a  modifying 
influence  upon  the  government.  Certain  doctrines  became 
known  as  Whig  doctrines.  For  example,  the  party  became 
committed  to  measures  for  removing  disabilities  from  Dis- 
senters and  Catholics.  The  Whigs  were  in  favour  of  the 
control  of  the  King  by  the  advice  of  his  Cabinet ;  that  is, 
they  were  opposed  to  the  irresponsible  action  of  the  King 
through  secret,  unauthorized  advisers.  And,  above  all, 
the  Whigs,  while  out  of  office,  became  thoroughly  con- 
vinced that  a  reform  of  Parliament  was  desirable.  Pitt, 
as  we  have  seen,  was  liberally  disposed  in  respect  to  many 
of  these  questions.  It  was  only  from  deference  to  the 
King  and  from  sympathy  for  his  unfortunate  condition 
that  he  had  ceased  to  urge  his  measure  for  the  relief  of 
Catholics.  Other  Tories  formed  habits  of  independent 
leadership.  'It  was  a  Tory  Ministry  that  finally  removed 
from  the  statutes  the  measures  for  persecuting  Dissenters. 
It  was  likewise  a  Tory  Ministry  that  forced  an  unwilling 
King  to  sign  the  measure  for  Catholic  Emancipation;  and 
a  strong  contingent  of  Tories  was  ready  to  join  the  Whig 
Ministry  in  the  final  demand  for  the  Great  Reform. 


CHAPTER  XLIII 

POPULAR  MOVEMENTS  PREVIOUS  TO  1832 

THE  demand  of  the  Whig  Cabinet  for  the  reform  of 
Parliament  was  strongly  enforced  by  the  discontent 
among  the  poor.  The  industrial  changes  of  the  previous 
half-century,  the  long  wars,  the  recurrence  of  financial 
crises,  and  the  wretched  system  of  poor-law  administra- 
tion, had  all  tended  to  create  a  turbulent,  suffering  class. 
For  a  time  after  the  French  Revolution,  the  consciousness 
of  the  presence  of  a  dangerous  amount  of  poverty  and 
misery  tended  to  unite  the  ruling  classes  in  the  support  of 
drastic  measures  for  suppressing  agitation.  But  before 
the  death  of  George  IV.  unrestrained  political  agitation 
had  broken  forth.  The  Reform  Act  was  in  no  sense  de- 
signed to  furnish  direct  relief  to  the  poor.  It  did  not 
propose  to  extend  the  franchise  to  any  considerable  class 
of  wage-earners.  Nevertheless,  it  was  a  popular  move- 
ment and  received  the  support  of  the  labourers. 

The  Great  Reform  is  best  understood  as  one  of  a  series 
of  popular  movements  extending  over  a  century  previous 
to  the  passage  of  the  act.  If  the  people  of  England  had 
been  content  to  live  under  such  a  form  of  government  as 
that  of  the  first  four  kings  of  the  house  of  Hanover,  they 
would  in  time  have  been  compelled  to  live  under  a  much 
worse  government  than  that  which  they  had  endured 
while  the  Stuarts  ruled.  Scarcely  had  the  government 
been  fully  composed  under  the  leadership  of  Walpole  when 

421 


422       GROWTH  O^  THE  ENGLISH  CONSTITUTION    chap,  xliii 

there  began  a  great  religious  revival  under  the  leadership 
of  the  Wesleys.  This  movement  profoundly  affected  the 
masses.  It  schooled  thousand^  of  the  poorest  and  hereto- 
fore the  most  hopeless  of  the  people  in  habits  of  union  and 
cooperation,  and  we  may  believe  that  it  had  much  influ- 
ence over  the  more  distinctly  political  agitations  which 
followed. 

The  placing  of  the  elder  Pitt  at  the  head  of  the  Min- 
istry in  1758  was  the  result  of  a  popular  excitement.  A 
little  later  arose  the  custom  of  petitioning  the  govern- 
ment for  a  redress  of  grievances.  A  cider  tax  was  im- 
posed in  1763,  and  was  the  occasion  of  a  popular  opposition 
which  continued  for  three  years,  when  the  obnoxious  tax 
was  removed.  The  agitations  in  which  Wilkes  was  the 
central  figure  extended  over  about  ten  years.  George  III. 
had  thrust  the  Whig  party  from  power  and  had  humili- 
ated its  leaders,  yet  in  the  midst  of  his  triumphs  he  was 
compelled  to  bow  to  the  demands  of  a  dissolute  advent- 
urer who  appeared  as  a  leader  of  the  people.  At  the 
same  time  the  right  to  publish  parliamentary  debates  was 
secured. 

In  1780  a  meeting  was  held  in  the  city  of  York, 
attended  by  clergymen  and  gentlemen  of  distinction,  for 
the  purpose  of  inaugurating  an  agitation  in  favour  of 
retrenchment  in  expenditures.  This  was  followed  by 
similar  meetings  elsewhere.  Corresponding  Societies  were 
formed  for  the  purpose  of  keeping  alive  popular  feeling 
in  favour  of  reform  in  government.  In  1792  the  Society 
of  the  Friends  of  the  People  was  organized  for  the  pur- 
pose of  promoting  parliamentary  reform. 

In  the  earlier  years  of  the  reign  of  George  III.,  Burke 
had  given  effective  support  to  the  movements  for  reform. 
Pitt  had  likewise  aided  the  cause.  But  when  the  Society 
of  the  Friends  of  the  People  was  organized,  Pitt  was  at 
the  head  of  a  Tory  Ministry,  and  Burke  had  become  the 


I 


CHAP.  XLiii    POPULAR  MOVEMENTS  PREVIOUS  TO   1832        423 

most  effective  alarmist  in  England.  By  a  series  of  re- 
pressive measures  popular  agitation  vras  arrested.  If  the 
Ministry  of  Pitt  was  somewhat  successful  in  restrain- 
ing the  will  of  the  King,  it  was  even  more  effective  in 
restraining  the  will  of  the  people.  Popular  agitation  was 
brought  to  an  end  by  force.  So  complete  was  the  re- 
pression that  there  occurred  no  great  political  uprising  of 
the  masses  with  important  political  consequences  until  the 
movement  which  carried  the  Reform  Bill. 

It  is  remarkable  that  there  should  have  been  previous 
to  the  Great  Reform  so  long  a  period  of  comparative  free- 
dom from  popular  disturbance.  It  was  as  if  by  common 
consent  the  people  had  determined  to  convince  Burke 
and  his  disciples  that  they  were  not  Frenchmen.  They 
patiently  endured  most  oppressive  laws.  Men  a  thousand 
times  more  meritorious  than  Wilkes  were  cruelly  pun- 
ished because  they  dared  to  resist  oppressive  measures; 
yet  scarce  a  ripple  of  popular  protest  was  manifested. 
If  this  patient  endurance  had  been  greatly  prolonged,  the 
people  would  have  convinced  the  world  that  they  had  also 
ceased  to  be  Englishmen.  The  agitation  for  reform  was, 
however,  thoroughly  English.  A  definite  goal  was  set  up, 
and  the  nation  moved  irresistibly  towards  that  goal. 

Macaulay  may  be  an  unreliable  historian;  but  in  the  days 
of  his  youth  he  was  at  least  a  reliable  sentimentalist;  and 
the  sentiments  to  which  the  young  Macaulay  gave  utter- 
ance in  the  House  of  Commons  during  the  debates  on  the 
Reform  Bill  are  themselves  first-class  history.  In  his 
speech  of  December  31,  1831,  he  said:  "All  that  I  know 
of  the  history  of  past  times  —  all  the  observations  I  am 
able  to  make  on  the  present  state  of  the  country  —  have 
convinced  me  that  the  time  has  arrived  when  a  great  conces- 
sion must  be  made  to  the  democracy  of  England  —  that 
the  question  whether  the  change  be  in  itself  good  or  bad 
has  become  a  question  of  secondary  importance."     Facts 


424       GROWTH   OF   THE   ENGLISH   CONSTITUTION    chap,  xliii 

from  the  history  of  the  French  Revolution,  which  Burke 
had  used  so  effectively  to  suppress  agitation,  Macaulay 
used  in  this  speech  as  warnings  to  the  Opposition  of  the 
danger  in  resisting  the  demand  for  reform.  He  assured 
his  hearers  that  the  yoke  which  Mr.  Pitt  had  fastened 
upon  the  necks  of  the  Englishmen  of  the  previous 
century  could  not  be  fastened  upon  the  men  of  the 
nineteenth  century.  Strafford  and  Laud  and  Charles 
I.  were  all  sad  examples  of  men  who  had  endeavoured 
to  govern  the  men  of  one  century  as  if  they  had  been 
men  of  the  previous  century.  The  reform  was  inevi- 
table. These  are  among  his  closing  words  :  "  You  may 
make  the  change  tedious  ;  you  make  it  violent ;  you  may 
—  God  in  his  mercy  forbid  —  you  may  make  it  bloody; 
but  avert  it  you  cannot.  Agitations  of  the  public  mind  so 
deep  and  so  long  continued  as  those  which  we  have  wit- 
nessed do  not  end  in  nothing.  In  peace  or  in  convulsion, 
by  the  law  or  in  spite  of  the  law,  through  the  Parliament 
or  over  the  Parliament,  reform  must  be  carried." 


CHAPTER  XLIV 

THE  GREAT  REFORM 

THE  modern  democratic  Constitution  of  England  may- 
be said  to  date  from  the  passage  of  the  Reform  Act 
of  1832.  The  Duke  of  Wellington,  speaking  in  the  House 
of  Lords  on  the  17th  of  May  of  that  year,  and  referring  to 
the  threat  of  the  creation  of  new  peers,  by  which  the  oppo- 
sition to  the  act  in  the  Lords  was  overcome,  used  these 
words :  "  If  this  be  a  legal  and  constitutional  course  of  con- 
duct, there  is  no  doubt  that  the  constitution  of  this  House 
and  of  this  country  is  at  an  end."  In  a  speech  delivered  a 
month  earlier  against  the  bill,  the  Duke  declared  that  the 
measure  would  lead  at  once  to  a  complete  democracy.  Yet 
the  act  was  not  in  itself  a  democratic  measure,  and  did  not 
lead  at  once  to  the  full  democracy.  Nevertheless  the  pas- 
sage of  the  act  involved  such  a  shifting  of  the  dominant 
forces  of  the  government  as  to  render  the  development 
of  democracy  easy  and  natural.  It  removed  from  the 
rotten  boroughs  and  the  over-represented  districts  one 
hundred  and  forty-three  members  of  the  House  of  Com- 
mons. Sixty-five  of  the  vacancies  thus  created  were 
filled  by  distributing  the  seats  to  counties,  and  the  re- 
mainder were  distributed  to  unrepresented  towns  and 
cities.  The  act  extended  the  franchise  to  lease-holders 
and  copy-holders  in  counties  and  to  tenants-at-will  pay- 
ing fifty  pounds  a  year.  In  towns  the  franchise  was  ex- 
tended to  house-holders  paying  ten  pounds  a  year.     This 

425 


426       GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap.  xLir 

still  left  the  great  body  of  the  wage-earners  in  town  and 
county  unenfranchised.  The  act  deserves  the  name  of  the 
Great  Reform,  because  in  a  certain  sense  it  involved  the 
democratic  measures  which  have  been  since  passed  and 
which  are  yet  to  be  passed. 

The  Act  of  1832  involved  a  radical  change  in  the 
relations  of  the  Cabinet  to  the  Crown.  This  proposition 
requires  elucidation,  since  many  facts  may  be  alleged  in 
support  of  the  view  that  nothing  essentially  new  was 
introduced  into  those  relations  at  that  time.  All  will 
admit,  however,  that  something  really  new  was  introduced 
when  George  I.  ceased  to  attend  the  Cabinet  meetings, 
leaving  Walpole  and  the  other  leading  officers  in  the 
Ministry  to  form  the  habit  of  determining  upon  the 
different  items  in  the  policy  of  the  government  before 
securing  the  formal  approval  of  the  King.  If  the  custom 
followed  by  the  first  two  Georges  of  giving  assent  to  what- 
ever their  ministers  advised  had  lasted  to  the  time  of  the 
Reform  Act  of  1832,  it  would  be  impossible  to  make 
good  the  contention  that  that  act  involved  an  important 
change  in  the  relation  of  Cabinet  to  Crown.  But  we 
have  seen  that  the  custom  did  not  endure. 

George  III.  employed  what  Burke  called  the  double 
Cabinet  system.  When  the  King  lacked  ministers  who 
were  willing  to  do  his  bidding,  he  used  a  "  Cabinet "  of 
his  friends  to  thwart  the  purposes  of  the  Cabinet  of  min- 
isters. The  later  Georges  for  the  most  part  had  their 
own  way  in  matters  of  government.  They  acted  through 
the  Cabinet  of  ministers  when  these  were  subservient, 
and  when  they  were  not,  they  acted  through  the  "  King's 
friends."  It  is  often  asserted  that  the  kings  thus  vio- 
lated the  Constitution.  They  did  indeed  violate  what 
has  since  1832  been  accepted  as  the  Constitution.  They 
likewise  violated  what  their  political  enemies  main- 
tained to  be  the  Constitution  of  that  time.     Yet  George 


CHAP.  xLiv  THE   GREAT   REFORM  427 

III.  and  George  IV.  had  for  the  most  part  the  loyal 
support  of  the  English  nation.  There  is  much  more 
reason  for  saying  that  the  sort  of  government  which 
they  maintained  received  the  approval  of  the  nation  than 
that  the  government  of  the  Whig  oligarchy  received 
such  approval  during  the  time  of  the  first  two  Georges. 
The  Whig  government  previous  to  the  Ministry  of  the 
elder  Pitt  was  notoriously  unpopular  and  tended  to 
grow  more  and  more  so.  The  later  Hanoverians  simply 
gained  possession  of  the  "  machine "  which  the  Whig 
oligarchy  had  created  and  used  it  to  their  own  advantage. 
They  were  entirely  constitutional  in  their  relations  to 
Parliament.  The  old  battle  between  the  Stuart  kings 
and  the  Parliament  had  been  brought  to  an  end,  leaving 
the  outward  form  of  victory  with  the  two  Houses,  while 
the  substance  remained  with  the  King.  In  the  time  of 
George  III.  the  nation  had  apparently  rejected  the  sort 
of  Cabinet  government  which  Walpole  had  introduced. 
No  national  enthusiasm  was  ever  aroused  over  a  proposi- 
tion to  restore  the  Whig  oligarchy  to  power. 

When  the  issue  was  joined  between  the  Ministry  of 
the  younger  Pitt  and  George  III.,  in  1801,  there  was 
little  general  interest  in  the  contest.  Likewise  in  the 
similar  contests  a  few  years  later  between  the  Whig 
Ministry  and  the  King,  there  was  no  indication  that  the 
nation   was   favourable   to   the    Whig   contention.     The 

[ing  then  appealed   to  the  country  and  secured  a  sub- 

jervient    Parliament,     and    his    easy   victory    over    the 

[Cabinet  in  these  contests  served  to  convince  the  states- 

[men    that    under   the   existing   Constitution  they  were 

loomed  to  perpetual  submission  to  the  will  of  the  King, 
hen,  ten  years  before  the  Reform  Act,  Brougham 
started  an  agitation  against  the  power  of  the  Crown,  it 
awakened  little  enthusiasm  either  in  Parliament  or  in 
the  country.     It  was  not   until  a  united   Cabinet   made 


428       GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xliv 

itself  the  mouth-piece  of  the  unrepresented  nation  in  its 
demand  for  an  extension  of  the  franchise,  that  a  method 
was  discovered  of  permanent  deliverance  from  the  power 
of  the  Crown. 

The  opposition  of  King  William  IV.  to  the  Reform 
Act  tended  directly  to  the  subordination  of  the  power 
of  the  Crown  to  the  dictation  of  the  Cabinet.  The 
Whigs  had  been  contending  for  thirty  years  that  the 
King  should  act  upon  the  advice  of  his  Cabinet  ministers. 
When  a  conflict  arose  between  these  two  powers,  it  was, 
according  to  this  newly  developed  Whig  theory,  the  duty 
of  the  King  to  yield.  There  is  reason  to  believe  that 
Lord  Brougham  really  enjoyed  the  situation  when  it 
was  evident  that  the  Cabinet  was  unanimously  determined 
upon  appealing  to  the  country  upon  the  rejection  of  the 
Reform  Bill  by  the  House  of  Lords  in  1831,  and  when 
it  was  equally  clear  that  the  King  was  opposed  to  the 
dissolution.  At  this  time  occurred  the  supposed  con- 
ference between  the  King  and  Lord  Brougham,  then 
Lord  Chancellor,  which  is  so  entertainingly  reported  by 
Mr.  Bagehot.  The  Cabinet  had  concealed  its  intentions 
from  the  King  until  the  preparations  for  the  ceremony 
of  the  dissolution  were  completed.  Then  the  Prime 
Minister,  accompanied  by  the  Lord  Chancellor,  went  before 
the  King  to  notify  him  that  his  presence  was  instantly 
required  to  give  effect  to  the  advice  of  the  Cabinet.  The 
Lord  Chancellor  had  even  ordered  the  King's  Life 
Guards  to  be  in  readiness.  Technically  that  was  a 
treasonable  act,  and  when  the  King  reminded  his  lord- 
ship that  he  had  committed  an  act  of  high  treason, 
Brougham  replied  that  he  was  perfectly  well  aware  of 
that,  and  was  quite  willing  to  bear  in  his  own  person  all 
the  blame.  He  nevertheless  admonished  the  King,  as  he 
valued  his  crown  and  the  peace  of  his  realm,  to  follow 
the  advice  of   his  ministers.     There   seems   to  be   some 


CHAP.  xLiv  THE   GREAT  REFORM  429 

doubt  about  the  exact  accuracy  of  this  story,  but  there 
is  no  doubt  whatever  in  respect  to  the  constitutional 
principle  which  the  story  is  fitted  to  illustrate.  From 
that  time  forth  it  was  fully  settled  that  the  Monarch 
must  give  effect  to  the  advice  of  a  united  Cabinet  sup- 
ported by  the  nation;  that  is,  by  a  majority  of  the  voters. 
The  question  may  still  be  asked.  How  does  the  yielding 
of  the  Monarch  to  the  advice  of  the  Cabinet  since  the 
Reform  Act  differ  from  the  yielding  of  George  I.  and 
George  II.  to  the  advice  of  their  ministers  ?  To  this  it 
may  be  replied  that,  with  a  few  exceptional  incidents, 
there  was  no  conscious  yielding  to  ministerial  dictation 
on  the  part  of  the  first  two  Hanoverians.  George  I.  and 
George  II.  both  believed  themselves  to  be  ruling  accord- 
ing to  their  own  wills  ;  and  not  only  so,  but  their  min- 
isters were  for  the  most  part  of  the  same  opinion  also. 
Walpole  knew  perfectly  well  that  he  could  not  hold  his 
power  for  a  day  except  with  the  loyal  support  of  the 
[Sovereign.  When  George  I.  died  in  1728,  Walpole  fully 
expected  that  his  own  rule  would  come  to  an  end,  because 
[in  the  quarrels  between  the  King  and  his  son,  the  heir, 
[he  had  offended  the  latter.  The  idea  of  Cabinet  dictation 
[in  the  modern  sense  is  utterly  absurd  as  applied  to  the 
[early  Hanoverians.  How  could  a  secret  and  suspected 
[Cabinet,  which  was  constantly  under  the  necessity  of  deny- 
ing its  own  existence,  dictate  a  policy  to  the  Monarch? 
The  one  apparent  exception  to  the  dominance  of  the  royal 
will  was  in  the  case  of  the  forcing  of  George  II.  to  admit 
Pitt  and  Chesterfield  to  the  Ministry.  But  that  is  to 
be  viewed  merely  as  an  incident  in  a  factional  strife 
among  Whig  leaders  and  their  Tory  rivals,  which  is  all 
it  was.  It  illustrated  no  principle  of  the  Constitution 
recognized  at  the  time  ;  neither  did  it  raise  a  discussion 
, directly  tending  to  develop  any  new  principle.  The 
[promotion  of  Pitt  to  the  first  place  in  the  Ministry,  in 


430       GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xliv 

1758,  was  because  of  a  popular  and  not  of  a  Cabinet 
demand. 

The  power  behind  the  throne  which  secured  harmony 
between  the  first  two  monarchs  of  the  house  of  Hanover 
and  their  Whig  ministers  was  another  throne  and  another 
royal  family  more  ancient,  more  sacred,  and  supported  by 
an  influential  body  of  English  citizens,  some  of  whom  had 
still  a  lingering  fondness  for  the  theory  of  the  divine 
right  of  kings.  In  the  face  of  a  prospective  restoration 
of  the  house  of  Stuart,  the  Brunswick  King  and  his 
Whig  ministers  were  of  necessity  at  one  ;  and  the  ques- 
tion as  to  whether  ministers  ought  to  yield  to  the  King 
or  the  King  to  his  ministers  could  not  be  raised  while 
the  issue  which  involved  the  very  existence  of  the  dy- 
nasty confronted  them.  But  when  William  IV.  yielded 
to  the  advice  of  his  Whig  Cabinet,  all  idea  of  disputed 
succession  had  long  since  passed  from  the  minds  of  men, 
and  the  question  whether  a  now  openly  avowed  and  cor- 
porate Cabinet  should  constitute  the  King's  only  advisers, 
and  hence  control  his  official  acts,  had  been  distinctly 
raised.  It  had  been  vigorously  debated  for  a  generation. 
The  issue  in  favour  of  a  united  Cabinet  as  the  sole 
channel  of  executive  conduct  had  been  first  made  by  a 
Tory  Ministry  and  received  the  support  of  influential 
members  of  that  party.  The  Whig  party  had  also  given 
its  adherence  to  the  new  doctrine.  Under  such  circum- 
stan^ces  the  yielding  of  the  Sovereign  was  more  than  a 
fact ;  it  was  the  recognition  of  a  principle.  The  power 
behind  both  throne  and  Cabinet  was  not  now  another 
throne  ;  it  was  what  Macaulay  has  called  the  Democracy 
of  England. 

Such  language  could  not  have  been  used  much  earlier 
in  any  country  without  manifestly  weakening  the  position 
of  the  party  employing  it.  Even  Thomas  Jefferson  and 
his  political  associates  did  not  call  themselves  Democrats. 


CHAP.  xLiv  THE  GREAT  REFORM  431 

They  chose  the  less  offensive  term,  Republicans,  and  were 
called  Democrats  only  in  reproach  by  their  enemies. 
Sometimes,  indeed,  Jefferson  and  his  followers  gave  a 
measure  of  countenance  to  democratic  ideas  by  using  the 
diluted  form,  "  Democratic  Republicans,"  as  descriptive  of 
their  party.  Just  when  or  how  the  old  Republican  party 
of  which  Jefferson  was  leader  became  the  Democratic 
party  with  Grover  Cleveland  at  its  head,  it  is  difficult 
to  showl  In  some  way  not  easily  explained  the  name 
'* Democrat"  had  been  gradually  displacing  the  name 
"Republican"  for  several  years  before  the  beginning  of 
the  administration  of  Andrew  Jackson  in  1828.  Mr. 
Jackson  is  by  common  consent  known  as  a  Democrat, 
and  there  is  no  longer  any  thought,  of  reproach  connected 
with  the  term. 

The  prejudice  against  democracy  had  been  weakening 
in  England,  as  in  America,  and  in  the  light  of  what  has 
happened  there  since  1832,  one  may  say  that  it  was  the 
democracy  of  England  which  then  compelled  the  obedi- 
ence of  King  and  Parliament,  though  in  the  light  of  all 
that  had  gone  before  in  English  history,  that  power  was 
seen  to  be,  rather,  the  English  mob.  It  was  the  ill- 
defined,  ill-organized  but  ever-sensitive  English  people. 
It  was  the  same  force  which  had  obliged  the  English  gov- 
ernment to  cease  its  legal  persecution  of  Wilkes  and  other 
printers  in  the  early  years  of  George  III. ;  the  same  that 
had  kept  Robert  Walpole  and  the  Whig  obligarchy  in 
what  may  be  called  a  constitutional  state  of  mind,  for  two 
political  generations.  It  was  the  patient  but  stubborn 
English  people  who  had  been  for  centuries  ready  to  take 
up  arms,  even  against  the  legal  exactions  of  the  govern- 
ment, and  had  compelled  the  continued  respect  of  the 
great  Tudor  monarchs.  It  was  they  who  defended  the 
Norman  kings  against  the  attacks  of  their  barons,  and 
who,  of  their  own  accord,  crushed  out  a  rebellion  against 


432    '    GROWTH   OF  THE   ENGLISH   CONSTITUTION    chap,  xliv 

the  first  Plantagenet,  and  freed  him  from  all  fear  ol: 
baronial  uprisings ;  they  who,  a  little  later,  had  stood  by 
barons  and  clergy  when  they  forced  King  John's  unwilling 
signature  to  Magna  Charta,  and  were  ever  after  ready  to 
favour  whatever  sovereign  or  faction,  church  or  party, 
seemed  at  the  time  to  best  fulfil  their  wishes  or  to  meet 
their  sense  of  right. 

It  is  clear  that  even  previous  to  1832  the  influence  of 
the  people  upon  the  government  had  been  at  all  times 
real  and  important,  but  there  had  been  in  it  nothing  which 
conforms  to  the  idea  of  democracy.  Popular  influence 
was  exercised  chiefly  through  illegal  channels ;  that  is, 
through  a  rebellious  army  or  a  mob.  Since  1832  this 
ancient  power  has  been  recognized  more  and  more,  and 
its  methods  of  expression  have  been  harmonized  with  the 
law  and  the  Constitution.  The  government  has  been 
becoming,  consciously  and  progressively,  a  government 
of  the  people,  by  the  people,  and  for  the  people.  Burke 
was  wont  to  say  that  the  Revolution  of  1688  was  a 
revolution  prevented,  and  not  a  revolution  accomplished. 
In  his  view,  that  Revolution  was  properly  called  Great 
because  it  restored  and  preserved  ancient  and  venerable 
institutions  in  their  ancient  and  venerable  relations.  Had 
Burke  been  true  to  the  instincts  of  his  race,  he  would 
have  said  in  plain  English,  "The  Revolution  was  Great 
because  it  was  small." 

The  Revolution  of  1688  may  be  said  to  have  ended 
the  great  Stuart  debate,  —  a  debate  which  did  tend  to 
destroy  the  ancient  unity  and  simplicity  of  the  Eng- 
lish government.  After  the  Revolution  that  unity 
and  simplicity  of  government  were  gradually  restored 
through  the  device  of  the  modern  Cabinet ;  but  as 
an  incident  to  that  restoration,  the  ancient  dependence 
of  the  two  Houses  of  Parliament  upon  the  Executive  was 
likewise  restored.     When  the  Whig  statesmen  solemnly 


CHAP.  xLiv  THE  GREAT  REFORM  433 

declared,  as  they  did  on  many  occasions  throughout  the 
reigns  of  George  III.  and  George  IV.,  that  the  power  of 
the  Crown  was  increasing,  they  were  telling  the  truth. 
The  power  of  the  Crown  was  increasing.  Government 
was  reverting  to  ancient  and  well-tried  grooves.  The 
Crown  was  gathering  to  itself  all  effective  sovereign 
power.  There  remained  but  one  question  to  be  answered, 
and  that  was.  Who  shall  exercise  this  power?  The 
answer  given  by  the  Act  of  1832,  and  by  the  acts  which 
have  followed,  and  the  national  sentiment  which  has  be- 
come prevalent,  is,  that  this  simple,  undivided,  effective 
sovereign  power  shall  be  exercised  by  a  body  of  men 
chosen  by  the  people,  and  responsible  to  the  people,  and 
who  at  all  times  avowedly  seek  to  fulfil  the  wishes  of  the 
people.  If  we  call  the  Revolution  of  1688  great  because 
it  prevented  a  threatened  change  in  the  government,  we 
ought  to  call  the  Act  of  1832  a  real  and  a  great  Revo- 
lution because  it  effected  a  profound  change  in  the  gov- 
ernment, and  a  change  which  presents  thus  far  all  the 
appearance  of  permanency.  This  is  the  result  of  that 
change  :  a  Cabinet  has  been  formed  which  has  gathered 
to  itself  all  effective  power,  and  this  power  has  been,  or 
is  being,  handed  over  to  the  English  people. 

It  was  not  until  the  Whig  Cabinet  was  placed  in  virtual 
possession  of  the  royal  prerogative  that  it  was  possible  to 
coerce  the  House  of  Lords.  The  Lords  furnished  much 
more  strenuous  resistance  to  the  Reform  Act  than  did  the 
King,  and  it  was  in  large  part  because  that  resistance  was 
so  determined  that  the  triumph  of  the  Cabinet  and  the 
nation  was  so  complete.  When  the  House  of  Lords  and 
the  House  of  Commons  were  alike  controlled  by  the  exer- 
cise of  royal  prerogative,  it  was  a  matter  of  indifference 
to  the  unrepresented  nation  which  of  these  two  Houses 
was  in  the  ascendant.  There  was  a  time  in  the  early 
years   of   the   younger   Pitt's  Ministry  when   the  Lords 

2f 


434       GROWTH   OF  THE   ENGLISH   CONSTITUTION    chap,  xliy 

seemed  more  nearly  in  accord  with  the  nation  than  the 
Commons.  But  when  it  became  evident  that  a  large  part 
of  the  nation  was  to  gain  representation  in  the  Commons, 
it  was  of  the  utmost  consequence  to  the  harmony  of  the 
Constitution  that  the  House  of  Lords  should  be  subordi- 
nated to  the  House  of  Commons. 

Mr.  Bagehot  gives  to  the  Duke  of  Wellington  much 
of  the  credit  of  effecting  this  change  in  the  Constitution. 
The  Duke  was  at  first  strenuously  opposed  to  the  Reform 
Bill,  and  was  also  earnest  in  the  assertion  of  the  doctrine 
that  the  House  of  Lords  had  coordinate  authority  with 
the  Commons,  and  that  the  coercion  of  the  Lords  would 
be  a  flagrant  violation  of  the  Constitution.  Yet  when  it 
was  made  evident  that  if  the  Lords  did  not  yield  new 
lords  would  be  created,  the  Duke  directed  his  energies  to 
persuading  the  Lords  to  yield  ;  and  in  after  years  he  took 
much  pains  to  educate  the  Peers  to  the  acceptance  of 
their  new  position  in  relation  to  the  Constitution. 

A  thoroughly  united  Cabinet  now  placed  itself  at  the 
head  of  a  national  government,  while,  as  the  representa- 
tive of  the  nation,  it  gathered  into  its  own  hands  the  exer- 
cise of  the  royal  prerogatives,  and  by  the  use  of  royal 
prerogative  compelled  the  House  of  Lords  to  submit  to  its 
will.  This  position  of  the  Cabinet  was  so  new  and  so 
important  that  it  may  be  said  to  be  the  beginning  of  the 
modern  Cabinet  system.  No  previous  Cabinet  had  ever 
held  such  a  position.  Walpole  had  no  conception  of  an 
institution  called  a  Cabinet  which  could  voice  the  senti- 
ments of  the  English  nation. 

The  difficulty  which  led  to  the  insertion  in  Magna 
Charta  of  that  provision  whereby  twenty-five  barons  were 
appointed,  whose  duty  it  should  be  to  make  war  upon  the 
King  in  case  he  should  disobey  the  charter,  was  never 
solved  until  the  passage  of  the  Reform  Act  of  1832. 

History  lends  support  to  the  view  that  an  oligarchy  is 


J 


CHAP.  xLiv  THE   GREAT  REFORM  435 

more  brutal  and  more  intolerable  than  a  monarchy.  The 
transfer  of  power  from  the  King  and  the  House  of  Lords 
to  the  Cabinet  would  have  led  to  no  improvement  in  the 
government,  had  not  agencies  at  the  same  time  been 
created  for  keeping  the  Cabinet  subject  to  the  will  of  the 
nation.  This  the  Reform  Act  did.  The  rotten  boroughs 
were  destroyed,  and  it  thus  became  impossible  to  name 
members  of  the  House  of  Commons  through  royal  influ- 
ence. This  exercise  of  royal  prerogative  did  not  pass 
from  the  King  to  the  Cabinet ;  it  was  forever  destroyed. 
The  franchise  was  so  extended  as  still  further  to  increase 
the  difficulty  of  influencing  elections.  By  these  changes 
the  House  of  Commons  for  the  flrst  time  in  its  history 
became  a  representative  institution  of  a  truly  national 
character. 

When  the  House  of  Commons  was  made  a  national  rep- 
resentative body,  it  became  possible  to  form  political  parties 
based  upon  public  opinion.  We  have  seen  that  this  was 
before  impossible.  Parties  were  controlled  by  class  in- 
terests, by  factions,  and  by  royal  patronage.  Since  the 
Reform  Act,  parties  have  been  chiefly  dependent  on  the 
power  of  persuasion.  While  liberal  Tories  were  united 
with  the  Whigs  in  the  agitation  for  the  reform,  there  were 
conservative  Whigs  who  were  alarmed  at  the  movement ; 
and  this  beginning  of  a  new  era  in  party  history  is  marked 
by  a  change  in  party  names.  The  members  of  one  party 
are  thenceforth  called  Liberals,  and  those  of  the  other 
party.  Conservatives.  Nor  was  the  change  one  in  name 
merely ;  thenceforth  the  party  leaders  looked  not  to  the 
monarch  for  power  to  control  the  House  of  Commons, 
but  to  the  voting  constituency  in  the  nation.  The  Cabi- 
net controls  the  monarch  and  directs  the  policy  of  the 
government;  but  the  Cabinet  is  itself  controlled  by  the 
voters  acting  through  the  House  of  Commons, 


CHAPTER  XLV 

LATER   REFORM  MOVEMENTS 

"TT  is  difficult  to  prove  that  any  new  principle  has  been 
-^  added  to  the  Constitution  since  the  Reform  of  1832. 
Certain  accepted  principles  have,  however,  been  enforced 
with  fresh  emphasis.  When  Robert  Peel  undertook  to 
form  a  Ministry,  early  in  the  reign  of  Queen  Victoria,  he 
insisted  upon  the  right  to  appoint  the  ladies  who  should 
attend  the  Queen  in  her  household.  The  Queen  refused 
to  yield  to  the  demand  of  her  minister.  Mr  Peel  then 
declined  to  be  responsible  for  the  government.  The 
point  at  issue  here  was  the  old  question  of  a  double  Cabi- 
net. The  Queen  was  surrounded  by  the  wives  of  Peel's 
political  opponents,  and  he  feared  that  secret  influence 
from  the  Monarch  would  tend  to  thwart  the  purposes  of 
the  Cabinet,  as  had  been  the  case  in  the  time  of  the  later 
Georges.  A  few  months  later  a  compromise  was  effected 
upon  the  question  at  issue,  and  Peel  became  Premier. 

The  principle  involved  in  this  feature  of  the  Constitu- 
tion is  that  the  sovereign  shall  be  guided  in  all  political 
acts  by  the  advice  of  the  members  of  the  Cabinet,  and  shall 
not  be  permitted  to  do  anything  which  tends  to  thwart 
the  policy  of  the  Cabinet.  As  Mr.  Bagehot  has  said,  the 
Monarch  has  a  right  to  be  informed,  and  he  has  the  right 
to  persuade;  and,  having  enjoyed  these  rights,  it  becomes 
his  duty  to  give  loyal  support  to  the  will  of  the  Cabinet. 
This  principle  is  absolutely  essential  to  the  maintenance 

436 


CHAP.  XLv  LATER  REFORM  MOVEMENTS  437 

of  the  present  democratic  Constitution.  If  a  monarch 
should  arise  who,  after  the  manner  of  George  III.,  should 
refuse  to  give  loyal  support  to  the  decisions  of  the  Cabi- 
net, it  would  then  become  necessary  either  to  give  up  the 
present  democratic  Constitution,  or  to  remove  the  mon- 
arch, or  to  secure  a  decision  that  the  monarch  was  insane, 
and  place  the  Crown  in  regency,  or  to  invent  some  other 
way  to  nullify  the  royal  influence. 

The  Reform  of  1832  is  great  because  it  included  or  ren- 
dered possible  and  logically  necessary  other  changes.  The 
franchise  was  extended,  yet  the  great  body  of  the  citizens 
was  still  unenfranchised.  The  nation  could  not  be  satis- 
fied with  such  a  condition  unless  the  people  could  change 
their  nature.  The  labouring  men  knew  that  they  were 
not  to  be  enfranchised  by  the  Act  of  1832 ;  yet  they  fur- 
nished the  show  of  force  which  overawed  the  King  and 
the  House  of  Lords.  The  English,  as  we  have  seen,  have 
never  permitted  hard  and  fast  lines  to  be  drawn.  It 
would  have  been  wholly  ''un-English"  if  the  unenfran- 
chised had  been  content  with  the  arbitrary  line  which  was 
fixed  by  the  Statute  of  1832.  Within  six  years  from  the 
date  of  the  Reform,  an  agitation  was  inaugurated  which 
had  for  its  object  the  removal  of  arbitrary  distinctions. 
This  is  known  as  the  Chartist  movement.  The  Chartists 
demanded:  1.  That  the  franchise  should  be  extended  to 
all  males  of  twenty-one  years  of  age.  2.  That  there  should 
be  equal  electoral  districts.  3.  That  voting  should  be  by 
secret  ballot.  4.  That  Parliaments  should  be  annually 
elected.  5.  That  there  should  be  no  property  qualification 
for  members  of  Parliament.  6.  That  members  should  be 
paid  for  their  services.  It  will  be  noticed  that  items  3 
and  5  in  this  list  have  been  attained,  and  that  the  others, 
with  the  exception  of  annual  elections,  are  in  process  of 
attainment. 

The  Chartist  movement  grew  rapidly  and  had  every 


438         GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xlv 

appearance  of  an  irresistible  national  uprising ;  but  it 
was  arrested  in  its  course  by  division  in  the  ranks  of 
the  agitators.  New  questions  arose  and  absorbed  the 
attention  of  the  people.  The  poor  were  starving,  and 
an  attempt  was  made  to  remove  the  tax  on  food.  The 
great  Corn  Law  debate  tended  to  divide  the  interest 
in  the  effort  for  the  new  charter.  Scarcely  had  the  vic- 
tory in  favour  of  cheap  bread  been  won  when  revolutions 
broke  out  on  the  Continent.  A  French  revolution  seems 
to  have  a  peculiarly  paralyzing  effect  upon  the  mind  of 
the  English  workingman.  The  Chartist  movement  died 
out  after  the  Continental  revolutions  of  1848.  Then 
ensued  the  Crimean  War  and  the  Indian  Mutiny  to  ab- 
sorb the  national  interest,  and  a  little  later  the  American 
Civil  War.  Following  these,  and  without  waiting  for  a 
popular  agitation,  the  Conservative  government  doubled 
the  voting  constituency  of  the  United  Kingdom  by  the 
Act  of  1867.  In  like  manner  the  Liberal  government 
again  almost  doubled  the  number  of  voters  by  the  Act  of 
1885,  and  the  remaining  limitations  upon  manhood  suf- 
frage are.  likely  soon  to  be  removed.  "  One  man,  one  vote  " 
is  now  an  accepted  principle  in  the  Liberal  programme. 

After  the  Reform  Act  of  1832,  the  Cabinet,  being  in 
possession  of  the  royal  prerogatives,  was  still  under  some 
temptations  to  use  its  power  to  influence  elections.  Elec- 
tions could  no  longer  be  controlled  in  the  old  way.  Yet 
when  the  two  political  parties  came  to  be  pitted  against 
each  other  as  competitors  for  votes,  and  the  voters  came 
to  be  nearly  equally  divided,  it  was  observed  that  the 
party  in  power  still  had  an  advantage  on  account  of  the 
patronage  of  office.  To  remove  this  inequality,  an  act 
was  passed  in  1857  requiring  that  admission  to  the  civil 
service  should  be  by  competitive  examination,  and  that 
removals  should  not  be  made  except  for  delinquency  in 
the  service.     The  object  and  the  effect  of  this  act  were  to 


CHAP.  XLV  LATER  REFORM  MOVEMENTS  439 

bring  to  an  end  the  ancient  and  time-honoured  practice  of 
influencing  elections  through  the  bribery  of  office.  Since 
the  reform  in  the  civil  service,  the  party  in  power  enjoys 
no  important  advantage  in  its  ability  to  influence  voters 
over  the  party  in  opposition. 

It  will  be  observed  that  in  this  respect  the  people  of 
England  enjoy  greater  freedom  than  do  the  people 
of  the  United  States,  although  in  recent  years  great 
progress  has  been  made  in  the  direction  of  Civil  Ser- 
vice reform.  The  "spoils  system"  as  it  has  prevailed 
in  our  cities  and  in  the  federal  government  resembles 
in  a  striking  manner  methods  of  the  government  of 
England  previous  to  the  Reform  Act.  Elections  are 
controlled  by  a  limited  class  who  have  the  offices,  and 
they  so  exercise  the  prerogatives  of  office  as  to  shut  out 
the  masses  of  the  people  from  a  share  in  the  government. 
It  happened  that  just  at  the  time  when  England  was 
taking  the  great  step  which  admitted  the  unrepresented 
nation  to  an  actual  participation  in  the  government,  the 
United  States  was  introducing  into  the  civil  service  of 
the  federal  government  the  spoils  system  which  tends 
directly  to  exclude  the  great  body  of  the  people  from 
their  rightful  share  in  the  government.  And  this  most 
undemocratic,  most  oligarchic  movement  in  America  was 
likewise  effected  in  the  newly  paraded  name  of  democracy. 

As  stated  above,  the  Act  of  1832  took  away  many 
seats  from  boroughs  having  few  voters,  and  gave  them  to 
the  newer  towns  and  cities  in  the  great  manufacturing 
centres.  There  had  been  for  centuries  a  demand  for  re- 
form in  the  government  of  the  municipal  corporations. 
The  chief  obstacle  in  the  way  of  this  reform  had  been 
the  fact  that  the  kings,  the  great  lords,  and  the  bishops 
found  it  easier  to  control  the  House  of  Commons  when 
a  majority  of  the  members  were  elected  by  close  corpora- 
tions in  towns  and  cities,  or  by  close  corporations  supple- 


440         GROWTH  OF  THE   ENGLISH  CONSTITUTION    chap,  xly 

merited  by  a  limited  number  of  freemen.  Members  of 
Parliament  had  not  been  chosen  by  the  tax -payers  in 
towns  and  cities.  On  the  contrary,  they  had  been  chosen 
by  the  few  whose  relations  to  the  local  government  were 
such  as  to  enable  them  to  live  upon  the  resources  of  the 
unrepresented  people.  In  this  respect  the  local  govern- 
ment resembled  the  general  government  of  king  and  Par- 
liament. In  many  cases  a  corporation  filling  its  own 
vacancies  enjoyed  a  monopoly  of  trade  in  the  towns.  This 
same  corporation  exercised  the  power  of  taxing  the  in- 
habitants of  the  town  and  appointed  the  members  of  the 
House  of  Commons.  In  this  way,  the  great  body  of  the 
tax-payers  were  shut  out  from  any  share,  either  in  the  con- 
trol of  local  taxation,  or  in  the  election  of  members  of  Par- 
liament. It  was  this  abuse  in  local  government  which 
intensified  the  popular  furor  and  made  the  demand  for  the 
Great  Reform  irresistible.  The  Municipal  Corporations 
Act  of  1834  is  an  integral  part  of  the  Great  Reform. 
By  this  act  the  close  corporations,  with  the  exception  of 
that  of  the  City  of  London,  were  destroyed,  and  the  gov- 
ernment of  the  towns  and  cities  was  placed  in  the  hands 
of  a  mayor  and  council  elected  by  the  rate-payers. 

The  other  important  acts  affecting  local  government  in 
recent  years  are:  the  act  passed  in  1834,  creating  areas  for 
the  administration  of  poor-laws  ;  the  act  of  1870,  providing 
for  the  election  of  school  boards ;  the  act  passed  in  1888, 
providing  for  the  government  of  counties ;  and  the  act  of 
1894,  providing  for  the  government  of  parishes.  The  im- 
portance of  the  relation  of  the  modern  democratic  Constitu- 
tion to  local  government  will  be  better  understood  after 
a  brief  review  of  the  relations  of  local  government  to  the 
central  government  during  the  preceding  centuries. 


CHAPTER  XLVI 

LOCAL  GOVERNMENT  AND  THE  CONSTITUTION 

TOURING  the  time  of  the  Norman  kings  and  the  early 
-■-^  Plantagenets  the  English  people,  as  represented  in 
their  local  governments,  were  the  chief  reliance  of  the 
kings  against  their  feudal  lords.  During  this  period  the 
closest  possible  relation  subsisted  between  the  king's 
government  and  these  local,  popular  institutions.  This 
combined  power  of  people  and  king  probably  reached  its 
highest  development  in  the  time  of  Henry  II.  Henry 
had  his  hands  upon  the  people  through  the  members  of 
the  Great  Council,  who  visited  the  county  courts  as  judges 
and  administrative  officers  ;  through  his  sheriffs,  whom  he 
appointed  and  ruled  ;  through  the  local  militia,  who  were 
drilled  by  officers  of  the  King ;  and  through  the  jurors  in 
the  local  courts  of  county,  hundred,  and  town. 

These  local,  popular  institutions  were  thoroughly  loyal 
to  the  King  because  he  protected  them  from  the  local 
tyrants  among  the  nobility.  This  fact  was  vividly  illus- 
trated in  the  time  of  the  Barons'  War,  which  occurred 
towards  the  close  of  Henry's  reign.  The  rebellion  was 
led  by  Henry's  own  son.  Yet  the  people  in  the  north  of 
England  arose  under  their  own  local  leaders,  without 
waiting  for  a  formal  call  from  the  King,  and  completely 
subdued  the  King's  enemies.  Henry  felt  so  secure  in  his 
position  that  he  did  not  even  take  the  trouble  to  punish 
any  of  the  leaders  of  the  rebellion.    He  continued  to  com- 

441 


442       GROWTH   OF   THE  ENGLISH   CONSTITUTION    chap,  xlvi 

pel  the  rebellious  barons  to  attend  the  meetings  of  his 
Great  Council  and  to  take  part  in  the  government  of  the 
realm.  Henry  II.  ruled  the  members  of  his  Great  Council 
with  a  rod  of  iron,  and  the  main  strength  of  that  rod  was 
found  in  the  local  institutions  of  the  English  people.  The 
barons  became  convinced  that  they  were  permanent  victims 
in  the  hands  of  the  King  and  his  administrative  agencies 
among  the  people,  unless  they  themselves  should  succeed 
in  winning  the  people  from  their  allegiance  to  the  King. 

It  was  more  tlian  a  hundred  years  after  Henry  II.  had 
perfected  the  compact  system  of  kingly  government  which 
included  the  local  governments  in  counties  and  towns, 
before  Edward  I.  called  upon  the  counties  and  certain 
towns  and  cities  to  send  each  two  delegates  to  attend  the 
meeting  of  liis  Great  Council.  This  intervening  century 
includes  the  contest  over  the  Great  Charter.  The  barons 
succeeded  hi  making  a  break  in  the  King's  government 
only  when  they  had  united  with  the  clergy,  and  aided  by 
them  had  succeeded  in  winning  over  the  English  people 
to  their  support.  After  John  and  Henry  III.  had  suffered 
the  barons  and  the  bishops  to  divide  with  the  King  the 
allegiance  of  the  English  people,  the  kings  of  England 
never  again  secured  such  effective  and  undivided  support 
from  the  people  as  represented  in  their  local  governments. 
Edward  I.  strove  to  win  back  the  allegiance  of  the  nation, 
and  he  had  some  success  in  restoring  the  administrative 
connection  of  the  King's  government  with  the  local  gov- 
ernments. He  improved  upon  the  judicial  system  of  the 
previous  reigns  and  used  this  to  give  him  a  hold  upon 
the  local  governments.  But  he  could  not  rely  upon  the 
support  of  these  local  governments  as  Henry  II.  had  done 
a  hundred  years  earlier.  It  was  probably,  in  part,  his 
sense  of  failure  at  this  point  that  induced  him  to  follow 
the  example  of  Earl  Simon  and  invite  these  local  govern- 
ments to  send  delegfates  to  the  Great  Council. 


CHAP.  XLVI  LOCAL  GOVERNMENT  443 

It  is  probable  that  the  decline  of  the  local  governments 
dated  from  the  time  when  the  barons  and  bishops  suc- 
ceeded in  gaining  popular  support  in  their  contests  against 
the  King.  The  process  was  greatly  hastened  after  Ed- 
ward I.  introduced  the  policy  of  having  delegates  sent  to 
Parliament  instead  of  sending  the  King's  officers  to  the 
local  governments.  The  towns  seemed  to  realize  that 
Edward's  policy  was  an  attack  upon  their  independence, 
and  they  objected  to  the  innovation.  At  any  rate,  within 
two  hundred  years  from  the  date  of  Edward's  Parliament 
the  towns  and  cities  had  fallen  into  the  hands  of  close  cor- 
porations which  had  monopolized  the  powers  of  govern- 
ment and  the  control  of  industries.  As  it  was  easier  to 
pack  Parliaments  when  the  voters  were  few,  so  it  was 
likewise  easier  to  control  the  government  of  a  city  when 
the  franchise  was  limited.  Both  the  local  magnates  and 
the  central  government  were  therefore  interested  in  the 
restriction  of  electoral  privileges.  Certain  it  is  that  the 
independence  of  the  towns  did  not  long  survive  the  time 
when  the  town  government  became  the  arena  for  contend- 
ing factions  striving  to  secure  delegates  to  a  Parliament 
which  was  to  be  used  as  a  make-weight  in  a  war  between 
contending  factions. 

In  the  counties  a  radical  change  likewise  took  place  at 
the  same  time.  The  old  county  court  which  was  attended 
by  a  considerable  body  of  freemen  gave  place  to  a  Court 
of  Quarter  Sessions  attended  by  the  justices  of  the  peace 
and  a  few  jurors.  The  old  popular  court  of  the  hundred 
was  displaced  by  a  Justice's  Court  in  Petty  Sessions.  It 
should  not  be  maintained  that  the  degeneration  of  all 
these  local  powers  was  wholly  caused  by  that  policy  which 
resulted  in  destroying  the  earlier  close  relation  between 
ihe  King's  government  and  the  local  institutions.  The  im- 
)ortant  fact  to  be  observed  is  that  the  decline  of  the  local 
governments  was  coincident  with  the  development  of  the 


444       GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xlvi 

House  of  Commons.  It  was  thus  that  local  government 
as  well  as  general  government  came  to  be  the  privilege  of 
a  few,  and  the  great  body  of  the  nation  was  disfranchised. 

If  the  people  of  England  were  so  thoroughly  disfran- 
chised four  or  five  centuries  ago,  how  then  does  it  happen 
that  they  retained  such  a  lively  interest  in  the  government  ? 
While  it  is  true  that  from  the  date  of  the  origin  of  the 
House  of  Commons  to  the  Reform  of  1832  the  great  body 
of  the  people  of  England  had  no  legal,  formal  share  in  the 
government,  either  local  or  general,  and  that  the  govern- 
ment was  in  the  hands  of  a  privileged  few,  yet  it  is  also 
true  that  during  all  that  time  the  same  people  enjoyed 
many  of  the  practical  advantages  of  a  democratic  govern- 
ment. Without  any  direct  or  conscious  political  power 
the  people  had  nevertheless  to  a  considerable  extent  al- 
ways determined  tlie  governmental  policy.  They  enjoyed 
the  fruits  of  a  democracy  without  its  responsibility.  This 
principle  may  perhaps  be  illustrated  by  reference  to  very 
recent  events  in  the  government  of  the  English  counties. 

Until  1888  the  government  of  the  counties  was  in  the 
hands  of  the  local  magistrates.  When  the  proposition 
was  under  discussion  to  substitute  for  the  ancient  insti- 
tution of  permanent  magistrates  a  county  board  chosen 
according  to  democratic  forms,  there  were  few  who  had 
any  criticisms  to  offer  against  the  magistrates.  Their 
government  had  been  efficient  and  economical,  and  had 
shown  a  decent  regard  for  public  opinion.  The  demand 
for  the  new  county  councils  did  not  rest  upon  faults  of 
the  old  government.  But,  as  an  incident  to  increased 
demands  upon  government  in  general,  it  was  felt  that 
new  duties  should  be  placed  upon  the  counties,  and  it 
was  likewise  felt  that  in  the  imposition  of  these  new 
duties  it  would  be  more  in  harmony  with  modern  demo- 
cratic ideas  to  fix  upon  the  body  of  the  voters  In  each 
county  the  responsibility  of  choosing  the  county  rulers. 


CHAP.  XLVI  LOCAL  GOVERNMENT  445 

The  magistrates  in  these  counties  had  for  years  been  ex- 
pecting this  change  to  be  made.  They  had  greatly  pro- 
longed their  rule  by  taking  pains  that  their  government 
should  be  without  reproach.  These  magisterial  county 
governments,  therefore,  while  in  form  far  from  democratic, 
have  been  such  in  spirit  and  substance  in  that  they  have 
expressed  the  will  of  the  people. 

We  are  warranted  in  believing  that  something  resem- 
bling the  relation  between  the  magistrates  and  the  counties 
in  recent  years  has  existed  between  the  people  and  their 
local  rulers  for  centuries.  There  is,  at  least,  this  fact  to 
be  accounted  for :  the  people  for  centuries,  or  ever  since 

>the  development  of  the  House  of  Commons,  have  been 
cut  off  from  a  share  in  the  government,  both  general  and 
local ;  and,  at  the  same  time,  these  same  people  have  mani- 
fested a  spirit  and  temper  characteristic  of  those  who  have 
had  constant  practice  in  local  government.  The  people 
retained  the  municipal  spirit  in  full  force  for  centuries 
after  they  had  lost  their  legal  participation  in  the  control 
of  municipal  institutions.  Something  of  this  is  doubtless 
due  to  the  rise  of  the  numerous  voluntary  societies,  already 
mentioned,  in  whose  management  they  shared;  but  that 
experience  was  comparatively  brief.  Probably  the  real 
explanation  of  this  anomaly  is  derived  from  the  view  that 
the  people  did  not  at  any  time  wholly  lose  their  influence 
upon  local  government.  Despite  their  loss  of  all  official 
connection  with  all  government,  there  is  yet  much  reason 
for  believing  that  their  strong  moral  and  political  influ- 
ence over  the  government  did  not  die  out.  According 
to  this  theory  the  legal,  formal  government  always  had  in 
it  elements  of  mere  fiction.  To  a  modern  democrat  it 
I  appears  worse  than  it  really  was.  In  appearance  only,  the 
f  House  of  Commons,  the  House  of  Lords,  the  King,  and  a 
few  privileged  supporters  were  an  organized  conspiracy 
against  the  masses  of  the  people.    These  rulers  were  never 


I 


446       GROWTH   OF  THE   ENGLISH  CONSTITUTION    chap,  xlvi 

at  any  time  agreed  among  themselves.  It  was  only  upon 
rare  occasions  and  for  brief  intervals,  when  threatened  by 
dangerous  uprisings,  that  they  composed  their  differences 
and  acted  in  harmony.  In  their  contests  among  them- 
selves there  was  a  constant  reliance  upon  the  unrepre- 
sented people  for  support. 

As  it  was  in  the  general  government,  so  it  must  have 
been  in  the  local  governments.  In  a  town  or  a  city  the 
few  got  control  of  the  offices,  but  they  by  no  means 
monopolized  political  power.  There  remained  the  class 
or  the  faction  which  had  been  displaced.  Then  we  may 
assume  that  there  were  divisions  among  the  local  officers. 
The  corporation  would  be  secure  only  when  the  various 
classes  were  duly  regarded  in  the  policy  of  government. 
It  required  two  hundred  years  for  the  towns  and  cities 
chartered  by  the  Norman  kings  and  the  early  Plantage- 
nets  to  lose  their  franchises  and  become  close  corpora- 
tions. These  changes  were  not  effected  without  many 
combats  and  many  jealous  feuds.  And  when  the  policy 
of  close  corporations  had  been  accepted  as  settled,  it  was 
always  possible  to  supplant  one  •  close  corporation  by  an- 
other. The  local  governments  were  for  the  most  part  left 
to  fight  out  their  own  quarrels.  ^  The  governing  class  in 
the  town,  being  insecure  in  its  tenure,  was  kept  on  its 
good  behaviour. 

The  Tudor  kings  were  probably  the  first  to  grant  char- 
ters to  towns  in  which  the  powers  of  local  government 
and  the  right  to  appoint  the  members  of  the  House  of 
Commons  were  conferred  upon  close  corporations.  Pre- 
vious to  the  time  of  Henry  VII.,  such  governments  had 
indeed  grown  up  and  had  been  tolerated  ;  but  Henry  gave 
them  the  sanction  of  law.  This  policy  of  Henry  VII.  and 
Henry  VIII.  was  probably  not  especially  offensive  to  the 
townspeople.  The  kings  looked  to  the  people  of  towns 
and  cities  and  to  the  middle-class  folk  in  the  country  for 


» 


CHAP.  XLVi  LOCAL  GOVERNMENT  447 

security  against  the  higher  nobility  and  the  higher  clergy. 
They  would  have  failed  of  their  chief  purpose  if  they  had 
not  seen  to  it  that  the  governments  which  they  formed  in 
the  towns  received  the  support,  or  at  least  the  acquies- 
cence, of  the  disfranchised  people.  These  local  govern- 
ments which  were  so  obedient  to  the  first  two  Tudors 
became  independent  and  refractory  in  the  time  of  Eliza- 
beth, and  rebellious  in  the  time  of  the  early  Stuarts.  All 
will  agree  that  the  local  officers  in  the  time  of  James  I. 
and  Charles  I.  could  have  accomplished  nothing  if  they 
had  not  succeeded  in  winning  the  support  of  the  people  in 
large  portions  of  the  country. 

There  were  under  Charles  II.  and  James  II.  the  most 
high-handed  acts  of  reconstruction  of  town  and  city  gov- 
ernments, not  in  harmony  with,  but  directly  against,  local 
prejudice.  Charles  II.  broke  up  the  Whig  corporations 
and  put  Tories  in  their  places.  James  II.  removed  Prot- 
estants and  filled  their  places  with  Romanists.  But  all  of 
these  events  were  within  five  years  of  the  Great  Revolution, 
and  were  without  doubt  among  its  causes. 

From  the  Great  Revolutfon  to  the  Great  Reform  the 
municipal  corporations  were  divided  between  the  two 
political  parties.  Whichever  party  succeeded  for  the  time 
in  gaining  the  support  of  the  King  was  enabled  to  control 
the  larger  number  of  the  borough  members  of  Parliament. 
Yet  at  no  time  were  the  party  leaders  and  the  King  able 
entirely  to  displace  the  party  in  opposition  from  the  control 
of  a  portion  of  the  borough  members.  It  was  always  true^ 
that  some  of  the  town  members  were  controlled  by  mag- 
nates of  the  locality.  Members  of  the  House  of  Lords 
controlled  many  of  the  boroughs.  Some  of  the  most  effec- 
tive critics  of  the  government  were  the  holders  of  seats 
controlled  by  a  Lord.  Other  seats  were  simply  sold  to  the 
highest  bidder.  The  elder  Pitt,  the  purest  and  most  pop- 
ular statesman  of  his  day,  obtained  admittance  into  the 


448       GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xlvi 

House  of  Commons  through  the  purchase  of  a  seat  by  his 
father.  Durmg  all  this  time  the  idea  was  undoubtedly 
kept  alive  that  these  privileged  local  governments  were 
insecure.  If  party  leaders  used  extravagant  language  in 
praise  of  the  rotten  boroughs,  it  was  from  a  conviction  that 
strong  language  was  required  to  overcome  the  palpable 
injustice  of  the  system. 

Thus,  during  all  the  centuries  until  the  actual  enfran- 
chisement of  the  people,  their  political  sense  was  kept  on 
the  alert  through  the  constant  tendency  of  the  ruling 
classes  to  appeal  to  them  for  support.  The  prevailing 
divisions  in  the  body  politic  were  vertical.  Horizontal 
ranks  of  society  were  constantly  broken  up.  From  top  to 
bottom  society  was  kept  sensitive  to  political  influences. 
And  by  this  long  course  of  training  in  virtual  democracy 
the  people  were  prepared  to  assume  the  responsible  con- 
trol of  a  most  delicate  and  effective  democratic  Consti- 
tution. 


CHAPTER  XLVIT 

ORIGIN  OF  THE  TEEM   "CONSTITUTION" 

SINCE  the  English  Constitution  rests  upon  theory,  the 
origin  of  the  term  and  its  various  meanings  are  im- 
portant facts  in  its  development.  The  Constitution  exists, 
in  part,  because  the  people  of  the  eighteenth  century- 
became  possessed  of  the  notion  that  they  were  the  subjects 
of  a  great  and  beneficent  Constitution.  How  did  such  a 
notion  originate  ? 

Mr.  Lecky  refers  to  the  Restoration  of  1660  as  "  a  time 
when  the  Constitution  was  still  unformed. "  Over  against 
that  may  be  set  the  statement  already  quoted  from  Hearn, 
to  the  effect  that  Queen  Victoria  is  bound  to  support 
the  identical  Constitution  which  the  Conqueror  promised 
to  maintain.  It  is  clear  that  these  two  writers  use  the 
word  with  meanings  wholly  different.  Mr.  Lecky  is 
surely  correct  in  assuming  that  at  the  time  of  the  Restora- 
tion the  people  were  not  generally  conscious  of  the  pos- 
session of  an  important  and  established  frame  of  govern- 
ment. Efforts  made  after  the  death  of  Charles  I.  to  set 
up  a  constitution  had  failed. 

In  the  second  charter  granted  to  the  colony  of  Vir- 
ginia, in  1609,  there  occurs  the  declaration  that  immedi- 
ately upon  the  arrival  of  the  officers  of  the  new  company 
all  "  Laws  and  Constitutions "  of  the  former  company 
shall  cease,  "and  all  Officers,  Governors,  and  Ministers 
formerly  constituted  and  appointed  shall  be  discharged." 
2  a  449 


450      GROWTH   OF   THE   ENGLISH   CONSTITUTION    chap,  xlvii 

It  will  be  observed  that  as  here  used  "constitutions"  is 
simply  an  alternate  term  with  "laws."  In  the  same  docu- 
ment appears  the  phrase,  "according  to  such  Orders, 
Ordinances,  Constitutions,  Directions,  and  Instructions 
as  by  our  said  Council  as  aforesaid  shall  be  established." 
Here  again  the  term  is  one  of  a  number  of  synonymous 
legal  designations.  A  corresponding  use  of  the  \erb 
"  constitute"  may  be  noted  in  the  Plymouth  charter  of  1620, 
where  occurs  the  sentence,  "  We  by  these  Presents  ordain, 
constitute,  limit  and  appoint  that  there  shall  be  hence- 
forth one  body  politic."  In  the  charter  for  Rhode  Island, 
granted  in  164^3,  it  is  ordained  that  the  Governor  and 
Commissioners  shall  have  power  "to  nominate,  appoint, 
and  constitute  "  subordinate  officers.  And  in  1681  the 
King  granted  to  William  Penn  the  power  "to  make  and 
constitute  "  fairs  and  markets ;  "  to  make  and  constitute 
wholesome  ordinances."  Such  expressions  abound  in  all 
the  colonial  charters. 

In  accordance  with  the  powers  conferred  upon  him, 
William  Penn  issued  in  1682  what  he  called  a  Frame  of 
Government  for  Pennsylvania,  with  a  preface  in  which  he 
declares  it  to  be  the  object  of  all  government  "  to  support 
power  in  reverence  ivith  the  people^  and  to  secure  the  people 
from  the  abuse  of  power;  that  they  may  be  free  by  their 
just  obedience,  and  the  magistrates  honourable,  for  their 
just  administration.  To  carry  this  evenness  is  partly 
owing  to  the  constitution  and  partly  to  the  magistracy." 
It  would  seem  that  this  was  using  the  word  "  constitu- 
tion "  almost  in  the  modern  American  sense.  The  mean- 
ing appears  to  be  :  The  objects  of  government  are  attained 
partly  through  the  Frame  of  Government,  that  is,  the 
Constitution  ;  partly  by  means  of  the  method  of  execution, 
that  is,  the  magistracy. 

Algernon  Sidney  wrote  his  work  on  Government  during 
the  reign  of  Charles  II.     He  was  a  staunch  believer  in 


CHAP.  xLvii     ORIGIN   OF   THE   TERM   "CONSTITUTION"  451 

republican  government,  and  the  following  passage  fairly 
indicates  his  general  theory  :  "  The  Israelites,  Spartans, 
Romans,  and  others,  who  thus  framed  their  governments 
according  to  their  own  Avill,  did  it  not  by  any  peculiar 
privilege,  but  by  a  universal  right  conferred  upon  them 
by  God  and  nature  :  they  were  made  of  no  better  clay 
than  others :  they  had  no  right  that  does  not  as  well 
belong  to  other  nations  ;  that  is  to  say,  the  constitution 
of  every  government  is  referred  to  those  who  are  con- 
cerned in  it,  and  no  others  have  anything  to  do  with  it." 
It  should  be  observed  that  the  word  "  constitution  "  as 
used  in  the  above  passage  does  hot  mean  a  frame  of  gov- 
ernment ;  it  is  merely  the  verbal  noun  denoting  the  estab- 
lishing or  the  framing  of  a  government.  Sidney  used  the 
words  "  constitute  "  and  "constitution  "  hundreds  of  times, 
and  the  latter  is  almost  invariably  the  verbal  noun,  or  is 
used  as  a  synonym  with  laws,  ordinances,  etc.,  as  in  the 
colonial  charters.  In  one  place,  however,  he  makes  the 
statement  that  all  human  constitutions  are  subject  to 
corruption,  and  must  perish  unless  they  are  "timely  re- 
newed," and  here  the  word  seems  to  mean  frame  of  gov- 
ernment. 

The  political  works  of  James  Harrington  were  written 
about  the  time  of  the  Commonwealth.  He  does  not  make 
as  frequent  use  of  the  words  "  constitute  "  and  "  constitu- 
tion "  as  did  Sidney,  but  his  writings  reveal  a  much  clearer 
conception  of  what  Americans  would  call  a  constitution. 
Harrington  had  a  well-developed  theory  for  balancing 
legislative  and  executive  powers,  and  for  securing  the 
harmonious  action  of  the  people  with  their  various  gov- 
ernmental agents.  He  favoured  the  Commonwealth,  and 
his  works  are  republican  in  their  tendency.  It  was  prob- 
ably on  account  of  the  teachings  of  such  theorists  as 
I  Harrington  that  the  Convention  Parliament,  which  re- 
called Charles  II.,  resolved  that "  according  to  the  ancient 
L 


452      GROWTH   OF  THE   ENGLISH  CONSTITUTION    chap,  xlvii 

fundamental  laws  of  this  kingdom  the  government  is,  and 
of  right  ought  to  be,  by  King,  Lords,  and  Commons." 

It  is  clear  from  the  frequent  use  of  the  words  "  consti- 
tute" and  "constitution"  in  the  various  charters  of  the 
period  of  American  colonization,  that  they  were  already 
in  common  use,  and  that  the  noun  was  understood  to  be 
synonymous  with  laws  and  ordinances.  Such  had  been  its 
meaning  throughout  English  history.  The  Constitutions 
of  Clarendon  of  the  time  of  Henry  II.  furnish  a  familiar 
example.  They  were  simply  a  body  of  laws.  But  during 
the  great  debate  of  the  Stuart  period,  both  from  its  ety- 
mology and  because  it  was  somewhat  less  frequently  used 
than  the  words  ''law"  and  "ordinance,"  "constitution" 
came  to  be  regarded  as  a  suitable  and  convenient  term  to 
designate  the  more  fundamental  laws  and  principles  of 
government. 

Those  who  believed  in  the  divine  right  of  kings  were 
naturally  opposed  to  any  theory  which  admitted  or  im- 
plied the  right  of  the  people  to  constitute  or  to  establish 
their  own  government.  The  idea  of  divine  right  and  the 
idea  of  the  right  of  the  people  to  constitute  their  own 
government,  are  essentially  antagonistic. 

A  passage  from  Bishop  Burnet,  already  referred  to, 
presents  the  term  "  Constitution "  in  contrast  with 
"Government."  When  James  II.  died,  in  1701,  Louis 
XIV.  acknowledged  his  son  as  king  of  England,  —  an 
act  which  gave  great  offence  to  both  Whigs  and  Tories 
in  England.  Parliament  passed  a  Bill  of  Attainder 
against  the  Pretender  and  made  it  high  treason  to 
hold  communication  with  him.  A  bill  was  also  passed 
requiring  office-holders,  teachers,  and  clergymen  to  take 
an  oath  to  support  the  Act  of  Settlement,  and  to  ab- 
jure all  allegiance  to  the  house  of  Stuart.  Many  of  the 
Tories  resisted  this  requirement.  In  the  House  of 
Commons  an  amendment  was  introduced,  "  favouring  the 


CHAP.  xLvii    ORIGIN  OF  THE   TERM   "CONSTITUTION"         453 

maintenance  of  government  in  King,  Lords,  and  Com- 
mons." This  amendment,  says  Burnet,  "was  rejected 
with  indignation";  "since  the  government  was  only  in 
the  King,  the  Lords  and  Commons  being  indeed  a  part 
of  the  Constitution^  and  of  the  legislative  body,  but  not 
of  the  G-overnment.^^  Of  the  doctrine  put  forward  by 
those  opposed  to  the  amendment  Burnet  says :  "  It  was 
a  barefaced  republican  notion,  and  was  wont  to  be  con- 
demned as  such  by  the  same  persons  who  now  pressed 
it."  The  idea  seems  to  be,  that  those  who  manifested  in- 
dignation at  the  declaration,  that  the  government  by  the 
King,  Lords,  and  Commons  should  be  maintained,  were 
Tories,  who  by  their  opposition  to  the  amendment  contro- 
verted an  ancient,  time-honoured  Cavalier  and  Tory  doc- 
trine ;  while  the  separation  of  the  government  into 
legislative  and  executive  departments  was  from  the  earlier 
Tory  standpoint  rank  republican  heresy.  Thus  it  seems 
that  in  the  time  of  Queen  Anne  even  Tories  employed 
the  word  "government"  in  a  restricted  sense,  and  were 
not  averse  to  the  use  of  "  constitution  "  as  the  more  gen- 
eral term. 

By  what  can  be  gathered  from  the  literature  preced- 
ing and  immediately  following  the  Great  Revolution  of 
1688,  it  is  made  evident  that  the  English  were  not  yet 
generally  conscious  of  the  possession  of  a  great  and  glori- 
ous Constitution.  The  term  had  not  yet  become  a  word 
to  conjure  with  in  politics.  Some  of  the  Whigs  possessed 
a  well-defined  theory  of  government,  and  some  of  their 
theories  they  embodied  in  the  Statutes  of  the  Revolution. 
Whigs  and  Tories  alike  united  in  the  Act  of  Settlement 
of  1701.  But  neither  were  conscious  of  the  existence  of  a 
great  national  Constitution,  in  whose  development  these 
acts  were  important  stages.  Mr.  Lecky  might  still  say  that 
as  late  as  1701  the  English  Constitution  was  yet  unformed, 
because  what  we  now  know  as  the  Constitution  could  not 


454      GROWTH  OF  THE  ENGLISH  CONSTITUTION    chai-.  xLVii 

exist  without  the  consciousness  in  the  minds  of  all  classes 
of  English  citizens,  that  they  were  the  subjects  of  such  an 
embodiment  of  the  nation's  will  and  the  nation's  author- 
ity. How  this  consciousness  was  developed  is,  therefore, 
an  important  part  of  the  story  of  the  origin  of  the  Con- 
stitution. 

It  is  easy  to  exaggerate  the  effect  of  individual  writings. 
So  far  as  the  works  of  such  writers  as  Sidney  and  Har- 
rington were  read,  their  tendency  was  certainly  to  induce 
a  feeling  of  individual  responsibility  for  the  maintenance 
of  good  government  —  to  teach  the  citizen  that  if  his  gov- 
ernment was  not  what  it  ought  to  be,  it  was  his  duty  to 
unite  with  others  to  make  it  such  ;  and  they  sought  to 
show  how  this  could  be  done.  It  will  be  seen  that  such 
writings  were  quite  in  harmony  with  the  American  notion 
of  a  constitution  as  a  form  of  government  constituted, 
set  up,  or  adopted,  by  the  people.  But  this  is  altogether 
diverse  from  the  English  idea,  and  it  may  be  doubted 
whether  these  writers  really  contributed  anything  of  im- 
portance to  the  development  of  either  the  American  or 
the  English  Constitution. 

Thomas  Hobbes  published  his  Leviathan  in  1651,  and 
Harrington's  Oceana  was  written  in  part  as  a  reply  to 
that  work.  Hobbes  was  fortunate  in  that  the  theory 
which  ho  put  forward  could  conveniently  be  made  a  sub- 
ject of  conversation  without  increasing  one's  sense  of  polit- 
ical responsibility.  According  to  his  theory,  man  in  all 
of  his  political  relations  is  a  victim.  In  a  state  of  nature 
he  was  a  victim  of  perpetual  violence.  In  order  to  avoid 
this  intolerable  violence  man  escaped  from  a  state  of  nat- 
ure into  a  state  of  government.  "  Leviathan "  is  the 
term  applied  to  the  State,  which,  as  Hobbes  defines  it,  is 
an  artificial  man.  But,  in  his  view,  the  citizen  becomes 
completely  a  victim  of  the  State.  Government  is  in  its 
very  nature  despotic.     Man  may  indeed  destroy  the  Levi- 


CHAP.  xLVii    ORIGIN   OF  THE  TERM   "CONSTITUTION*^         456 

athan  which  he  has  created,  but  he  then  becomes  again 
the  victim  of  a  state  of  nature.  It  will  be  seen  that  this 
theory  involves  the  essential  ideas  of  the  famous  contract 
or  compact  theory  of  government.^ 

Philosophers  of  a  less  sombre  cast  of  mind  constructed 
afterward  from  those  same  ideas  a  much  more  humane 
and  kindly  view  of  organized  society.  To  them  the  ideal 
state  of  nature  became  more  tolerable.  It  was  indeed 
made  so  comfortable  that  men  would  not  leave  it  unless 
palpable  inducements  were  offered.  And  after  men  had 
consented  to  forego  a  state  of  nature  for  a  state  of  civil 
government,  if  that  government  should  become  tyrannical 
they  could  without  remorse  revert  temporarily  to  the 
primeval  state. 

John  Locke  Avrote  his  Civil  Government  after  the 
Great  Revolution.  He  used  the  phrase,  "a  state  of 
nature,"  but  greatly  changed  its  meaning.  To  his  mind 
it  did  not  imply  a  condition  of  universal  individual  war- 
fare. Even  in  a  state  of  nature,  a  sort  of  society  existed. 
"  And  were  it  not  for  the  corruption  and  viciousness  of 
degenerate  men,  there  would  be  no  need  of  any  other,  no 
necessity  that  men  should  separate  from  this  great  and  nat- 
ural community  and  associate  into  lesser  combinations."  ^ 
For  the  better  protection  of  property,  Locke  maintains 
that  men  would  consent  to  pass  from  the  society  of  nature 
and  become  members  of  a  particular,  local  civil  society. 
That  is,  they  would  give  up  one  positive  good  for  another 
in  becoming  members  of  a  body  politic.  Should  the  body 
politic  be  suspended  or  destroyed,  men  would  revert  not 
to  a  condition  of  warring  individualism,  but  to  the  society 
of  nature.  Locke's  view  of  the  state,  therefore,  differed 
much  from  that  set    forth  in  the  Leviathan  of   Hobbes. 

1  For  an  account  of  the  origin  of  the  theory,  see  Borgeaud,  liise  oj 
Modern  Democracy,  Chap.  III. 

2  Civil  Government,  p.  257. 


456      GROWTH  OF  THE   ENGLISH   CONSTITUTION    chap,  xlvii 


He  says,  "  The  constitution  of  the  legislative  is  the  first 
and   fundamental   act   of    society   whereby   provision   is 
made    for    the   continuation   of    their   union   under  the 
direction  of  persons  and  bonds  of  laws,  made  by  persons 
authorized  thereunto  by  the  consent  and  appointment  of 
the  people,  without  which  no  one  man  or  number  of  men 
amongst  them  can  have  authority  of   making  laws  that 
shall  be  binding  to  the  rest."^     Instead  of  a  despotism; 
Locke  derives   from   the   contract   theory  a   sort   of   re- 
public.    He   proceeds   to   specify  how  in   the  case  of  ai 
government  such   as  that  of   England   the  people  were' 
justified  in  reverting  to  a  state  of  nature  and  providing] 
for  themselves  a  new  government,  if  the  Prince  should] 
act  as  Charles  II.  and   James  II.  had  acted  on  various 
occasions  ;   or  if  the  legislators  should  endeavour  to  in- 
vade  the    property   of    subjects    and    make    themselves 
masters  of  the  lives  and  fortunes  of  the  people. 

It  would  be  altogether  fanciful  to  try  to  make  out  any  | 
close  connection  between  the  philosophizing  of  such  men 
as  Hobbes  and  Locke  and  the  actual  course  of  English 
politics.     Yet  it  is  not  unreasonable  to  suppose  that  thei 
contract   theory  of   government  in  the  various  forms  in| 
which   it   appeared   did   have  some  practical  effect.     Iti 
presented  a  definite  answer  to  the   divine-right   theory. 
The  state  of  nature  which  Hobbes  described  was  harsh 
and  forbidding,  and  was  evidently  intended  to  discourage 
revolution.     The  state  of   nature  which   took   shape   in] 
the  brains  of  later  philosophers  tended  to  stay  the  mindj 
in  view  of  resolute  changes  in  the  government.     There] 
is   not,  indeed,  the   slightest   evidence   that   any  of   the] 
philosophers  had  a  clear  idea  of  what  the  phrase  actuallyj 
meant.     But  an  incomprehensibility  which   had  a  name] 
seemed  less  frightful  than  nameless  chaos  and  anarchy. 

For  the  hundred  and  fifty  years  after  Hobbes  many] 
1  Civil  Government,  p.  302. 


CHAP.  XLvii    ORIGIN  OF  THE  TERM   "CONSTITUTION"         457 

of  the  active  statesmen  believed  in  the  contract  theory 
of  government,  and  it  may  be  supposed  that  such  a 
notion  might  influence  actual  conduct.  Indeed,  one 
of  the  crimes  charged  against  James  II.  was  that  of 
violating  the  original  compact.  In  a  negative  way,  at 
least,  the  theory  must  have  had  some  effect  in  respect 
to  the  genesis  of  the  English  Constitution.  It  occupied 
the  minds  of  men  of  active  brains,  and  thus  prevented 
them  from  theorizing  along  lines  less  in  harmony  with 
that  modern  Constitution  which  was  in  the  making. 
And  the  long  practice  in  the  belief  in  a  theory  which 
was  void  of  objective  reality  may  have  been  a  predispos- 
ing cause  of  the  ultimate  belief  in  an  actual  constitution 
resting  chiefly  upon  a  state  of  mind. 

The  writers  upon  political  science  of  the  seventeenth 
century,  being  for  the  most  part  unconscious  of  the 
existence  of  a  great  English  Constitution,  drew  their 
illustrations  chiefly  not  from  the  history  of  the  English, 
but  from  that  of  the  Israelites,  the  Greeks,  and  the 
Romans.  But  since  the  birth  of  the  idea  it  is  English 
history  almost  alone  which  supplies  adequate  illustra- 
tions. The  experiences  of  other  nations  are  of  little 
value  to  a  mind  possessed  of  Burke's  idea  of  the  English 
Constitution,  unless  it  be  as  examples  to  be  shunned. 

William  Blackstone  was  made  professor  of  English 
Law  at  Oxford  in  1758,  the  year  of  Pitt's  great  vic- 
tories during  the  Seven  Years'  War.  Seven  years  later 
he  began  to  publish  his  Commentaries.  There  is  no 
evidence  that  Blackstone  originated  any  important  view 
of  the  English  Constitution  or  of  the  English  law ;  he 
but  reported  the  current  views  of  the  jurists  of  his  day. 
The  Commentaries  reveal  the  fact  that  the  belief  that 
England  was  the  possessor  of  a  remarkable  constitution 
had  permeated  the  minds  of  men.  Blackstone  tells  us 
that  the  English  Constitution  is  "  very  different  from  the 


L 


458       GROWTH   OF   THE   ENGLISH   CONSTITUTION    chap,  xlvii 

modern  constitution  of  other  states  on  the  Continent  of 
Europe,  and  from  the  genius  of  imperial  law ;  which  in 
general  are  calculated  to  vest  an  arbitrary  and  despotic 
power  of  controlling  the  actions  of  the  subject,  in  the 
prince  or  in  a  few  grandees.  And  this  spirit  of  liberty 
is  so  deeply  implanted  in  our  constitution  and  rooted 
even  in  our  very  soil  that  a  slave  or  a  negro,  the  moment 
he  lands  in  England,  falls  under  the  protection  of  our 
laws,  and  so  far  becomes  a  freeman."  Nothing  like  this 
can  be  found  in  the  writings  of  the  previous  century. 

Blackstone  also  quotes  a  passage  from  Montesquieu 
in  which  the  French  author  states  that  England  is  the 
only  country  in  the  world  where  political  or  civil  liberty 
is  the  direct  end  of  the  Constitution.  The  comparison 
favourable  to  England  which  had  been  instituted  with 
the  governments  of  the  Continent  had  deeply  affected 
the  minds  of  all  classes  in  England.  Whig  and  Tory 
alike  gloried  in  the  superiority  of  the  English  govern- 
ment. 

As  the  sense  of  the  grandeur  of  the  Constitution  grew 
there  was  less  controversy  about  the  interpretation  of 
early  English  history.  All  now  by  common  consent  re- 
garded as  the  lasting  glory  of  England  Magna  Charta 
and  all  the  liberal  acts  and  interpretations  of  all  past 
rulers.  Sir  Edward  Coke,  who  had  been  persecuted  by 
the  kings  of  his  day,  was  now  accepted  by  Whigs  and 
Tories  as  a  wise  interpreter  of  law.  That  general  view 
of  English  history  which  had  been  put  forth  in  the  pre- 
vious century  by  those  who  withstood  the  claims  of  the 
Stuarts  had,  before  George  III.  became  king,  become 
the  commonly  accepted  view,  and  the  writings  of  Black- 
stone  were  regarded  with  especial  favour  by  the  Tory 
ministers  of  that  sovereign,  while  their  author  was  the 
recipient  of  peculiar  favours  at  their  hands.  The  Con- 
stitution, as  defined  by  Blackstone,  is  that  whereby  the 


CHAP.  XLvn     ORIGIN  OF   THE   TERM    "CONSTITUTION"  459 

happy  balance  has  been  preserved  in  the  government, 
and  it  is  his  view  that  this  Constitution  has  existed  from 
the  dawn  of  English  history.  This  it  is  which  has  endured 
amid  all  the  changes  of  the  ages. 

Among  the  various  crimes  recounted  in  the  charges 
brought  against  James  II.  after  his  flight  from  the  king- 
dom was  that  of  endeavouring  to  subvert  the  Constitution, 
and  Mr.  Justice  Blackstone  is  very  happy  in  the  view  that 
he  did  not  really  subvert  it.  Had  he  done  so,  then  that 
condition  of  things  described  by  Locke  would  almost  have 
ensued,  for  Blackstone  tells  us  it  "  would  have  reduced  the 
society  almost  to  a  state  of  nature."  ^  If  this  had  actually 
happened,  the  people  would  have  been  left  at  liberty  to 
erect  a  new  state  upon  a  new  political  foundation.  But 
the  Convention  Parliament,  as  he  further  states,  prudently 
voted  otherwise.  Their  vote  asserted  that  though  King 
James  had  departed,  yet  the  kingly  office  remained.  "  And 
thus  the  Constitution  was  kept  entire."  It  is  Mr.  Justice 
Blackstone's  opinion  that  the  Constitution  could  not  sur- 
vive the  abolition  of  so  constituent  a  part  as  the  royal 
authority.  At  the  same  time  he  pronounces  divine  and 
indefeasible  hereditary  right  coupled  with  the  doctrine 
of  passive  obedience  as  ''  of  all  constitutions  the  most 
slavish  and  dreadful."  "But,"  he  adds,  "when  such  an 
hereditary  right  as  our  laws  have  created  and  vested  in 
the  royal  stock  is  closely  interwoven  with  those  liberties 
which,  we  have  seen  in  a  former  chapter,  are  equally  the 
inheritance  of  the  subject,  this  union  will  form  a  consti- 
tution, in  theory  the  most  beautiful  of  any,  in  practice 
the  most  approved,  and,  I  trust,  in  duration  the  most  per- 
manent. "^  Then  he  draws  the  logical  conclusion  that  it 
is  the  duty  of  every  good  Englishman  to  understand,  to 
revere,  and  to  defend  this  Constitution. 

These  panegyrics  were  first  published  at  a  time  when 
1  Book  I.,  p.  213.  2  Book  I.,  p.  217. 


460      GROWTH  OF  THE   ENGLISH  CONSTITUTION    chap.  xlviI 

the  Whig  statesmen  were  becoming  convinced  that  a  des- 
potism was  being  fastened  upon  the  land  through  the 
machinations  of  George  III.  But  a  broad  distinction 
must  be  made  between  the  political  contentions  of  the 
day  and  that  view  of  the  Constitution  which  had  then 
taken  root  in  the  minds  of  all  parties.  This  sentimental 
glorying  in  their  common  heritage  was  the  delight  of  Whigs 
and  Tories  alike,  and  they  thus  expressed  the  prevalent 
conviction  of  the  especial  good  fortune  of  Englishmen  as 
compared,  for  example,  with  Frenchmen.  Such  laudation, 
likewise,  arose  from  the  common  view  that  the  history  of 
England  had  upon  the  whole  been  fortunate  for  all  classes. 
We  have  now  reached  a  period  when  such  is  the 
accepted  view  of  the  Constitution  that  it  is  itself  removed 
from  the  field  of  contention.  When  opposing  parties 
appeal  to  the  same  intangible  entity  which  is  understood 
to  embody  the  national  spirit  and  the  national  greatness, 
and  to  secure  and  protect  the  liberties  of  Englishmen  and 
define  the  spheres  of  their  governmental  institutions,  and 
are  unanimous  in  making  that  unchanging,  inviolate  Con- 
stitution to  which  all  are  subject,  the  object  of  their  equal 
veneration  and  affection,  they  cannot  quarrel  as  to  the 
Constitution  itself.  They  differ  rather  as  to  methods  for 
honouring  and  preserving  it,  and  the  most  damaging 
charge  which  each  brings  against  the  policy  or  the  act  of  j 
the  other  is  that  it  is  "unconstitutional." 


CHAPTER  XLVIII 

BUEKE  AND   THE  CONSTITUTION 

TTTRITING  in  1791,  Edmund  Burke  said  of  the  Eng- 
'  ^  lish  Constitution  :  "  Great  critics  have  taught  us 
one  essential  rule.  ...  It  is  this,  that  if  ever  we  should 
find  ourselves  disposed  not  to  admire  those  writers  or 
artists,  Livy  and  Virgil,  for  instance,  Raphael  or  Michael 
Angelo,  whom  all  the  learned  had  admired,  not  to  follow 
our  own  fancies,  but  to  study  them  until  we  know  how 
and  what  we  ought  to  admire  ;  and  if  we  cannot  arrive  at 
this  combination  of  admiration  with  knowledge,  rather  to 
believe  that  we  are  dull,  than  that  the  rest  of  the  world 
has  been  imposed  upon.  It  is  as  good  a  rule,  at  least, 
with  regard  to  this  Constitution  [of  England].  We 
ought  to  understand  it  according  to  our  measure  ;  and 
to  venerate  where  we  are  not  able  presently  to  com- 
prehend."^ 

This  view,  it  will  be  seen,  places  the  Constitution  beyond 
the  pale  of  controversy.  Mr.  Burke's  career  illustrates 
perhaps  better  than  that  of  any  other  statesman  the  power 
of  the  Constitution  as  a  sentimental  bond  of  union.  In 
the  earlier  part  of  his  public  life  he  was  an  aggressive 
Whig-,  a  friend  of  Wilkes,  an  advocate  of  the  cause  of  the 
American  colonies,  and  a  popular  agitator.  After  the 
French  Revolution  he  became  the  most  effective  expositor 
of  the   conservative   view   of  the   English   government. 

1  Burke's  Works,  Vol.  III.,  p.  114. 
461 


462     GROWTH   OF   THE   ENGLISH   CONSTITUTION    chap,  xlviii 

Still  he  was  at  all  times  equally  an  unquestioned  wor- 
shipper of  what  he  called  the  Constitution.  Burke's  view 
of  the  government  and  of  its  relations  to  past  history  was 
in  substantial  accord  with  that  of  Blackstone,  avIio  was  to 
the  Tories  an  acceptable  expositor  of  the  Constitution. 

George  III.  and  his  ministers  had  in  the  name  of  the 
Constitution  displaced  the  Whigs  and  increased  the  power 
of  the  Crown.  They  averred  that  the  balance  of  the  Con- 
stitution had  been  destroyed  by  the  Whig  oligarchy, 
that  the  Crown  had  been  abased,  and  that  by  the  hands 
of  a  secret  and  unauthorized  body,  a  tyranny  was  being 
established.  Some  of  the  statesmen  who  acted  with  the 
King  still  called  themselves  Whigs;  and  Whigs  and  Tories 
alike  gloried  in  the  distinctive  Whig  doctrines  of  the  pre- 
vious century.  Burke  ridiculed  the  Whigs  who  had  at- 
tached themselves  to  the  royal  side  in  such  terms  as  these  : 
"  To  be  a  Whig  on  the  business  of  a  hundred  years  ago  is 
quite  consistent  with  every  advantage  of  present  servility. 
This  retrospective  wisdom  and  historical  patriotism  are 
things  of  wonderful  convenience. "  "  Few  are  the  partisans 
of  departed  tyranny."  "  There  was  no  professed  admirer  of 
Henry  VIII.  among  the  tools  of  the  last  King  James.  "^ 
These  sayings  illustrate  the  fact  that  with  the  new  view  of 
the  Constitution,  controversy  about  past  history  had  ceased, 
or  had  narrowed  itself  to  the  claim  that  the  men  who 
were  criticised  were  not  acting  in  accordance  with  the 
true  spirit  of  the  past.  Such  charges  were  brought  by 
each  party  against  its  opponents,  and  each  accused  the 
other  of  violating  the  Constitution. 

Burke  admitted  that  there  was  no  longer  a  question  as 
to  the  existence  of  Parliament.  He  maintained  that  the 
Constitution  was  now  fully  matured,  and  that  there  was 
no  further  danger  from  such  attempts  as  had  endangered 
its  infancy.  Danger  still  threatened  from  arbitrary  im- 
1  Burke's  Works,  Vol  I.,  p.  358. 


CHAP.  xLvm        BURKE   AND   THE   CONSTITUTION  463 

positions,  but  such  impositions  would  not  bear  upon  their 
foreheads  the  name  of  Ship-money.  The  orator  pointed 
out  what  he  conceived  to  be  the  real  danger  then  threat- 
ening the  Constitution,  which  he  called  Influence.  The 
power  of  the  King's  prerogative  was  almost  dead,  but 
there  had  grown  up  "  a  backstairs  influence  and  clandes- 
tine government,"  which  imperilled  the  Constitution. 
With  minute  detail  Mr.  Burke  explained  the  process  of 
the  formation  and  working  of  the  secret,  irresponsible 
Cabinet  of  the  "  King's  friends,"  showing  how  the  double 
Cabinet  was  formed  and  became  in  time  the  single  Cabinet, 
when  through  clandestine  influence  and  corruption  the 
secret  body  of  "  King's  friends  "  secured  all  power. 

During  the  darkest  days  of  the  struggle  with  the  Amer- 
ican colonies,  when  the  greater  part  of  the  Whigs  sought 
to  express  their  contempt  for  the  government  by  seceding 
from  Parliament,  Mr.  Burke  addressed  a  letter  to  the 
colonists  in  which  he  assured  them  that  a  majority  of  the 
uninfluenced  in  England  were  in  sympathy  with  them. 
*' We  feel,"  said  he,  "as  you  do  on  the  invasion  of  your 
charters."  He  urged  the  Americans  to  stand  firm  for 
their  rights  as  Englishmen.  To  him  the  Americans  were 
not  rebels  ;  but  those  who  were  against  the  constitutional 
rights  of  Englishmen,  whether  in  America  or  in  England, 
were  "attainted,  corrupt  in  blood."  "They  are  the  real 
rebels  to  the  fair  Constitution  and  just  supremacy  of  Eng- 
land." But  their  champion  then  warns  the  colonists  that 
"  none  but  England  could  communicate  to  them  the  bene- 
fits of  such  a  constitution."  Said  he,  "We  apprehend 
that  you  are  not  now,  nor  for  ages  are  likely  to  be,  capable 
of  that  form  of  constitution  in  an  independent  state." 

Besides  these  appeals  to  the  American  colonists  to  stand 
firm  for  the  English  Constitution,  Mr.  Burke  expressed  on 
various  occasions  his  hope  and  expectation  that  the  Eng- 
lish people  could  be  relied  upon  to  save  their  Constitution 


464     GROWTH  OF   THE   ENGLISH   CONSTITUTION    chap,  xlviii 

from  ruin.  In  an  address  delivered  in  1770  on  the  Causes 
of  the  Present  Discontent,  he  spoke  of  the  Constitution 
as  standing  on  a  nice  equipoise,  with  steep  precipices  and 
deep  waters  upon  all  sides.  So  desperate  seemed  the  situa- 
tion that  he  was  led  to  exclaim,  ''  I  see  no  other  way  for 
the  preservation  of  a  decent  attention  to  public  interest 
in  the  representatives  but  the  interposition  of  the  body 
of  the  people  itself,  whenever  it  shall  appear,  by  some 
flagrant  and  notorious  act,  by  some  capital  innovation, 
that  these  representatives  are  going  to  overleap  the  fences 
of  the  law,  and  to  introduce  an  arbitrary  power.  This 
interposition  is  a  most  unpleasant  remedy.  But  if  it  be  a 
legal  remedy,  it  is  intended  on  some  occasions  to  be  used ; 
to  be  used  then  only,  when  it  is  evident  that  nothing  else 
can  hold  the  Constitution  to  its  true  principles."^ 

The  same  address  alludes  to  the  time  when  the  House 
of  Commons  was  supposed  to  be  no  part  of  the  gov- 
ernment of  the  country  ;  when  it  was  considered  as  a 
control^  issuing  immediately  from  the  people,  and  speed- 
ily to  be  resolved  into  the  mass  from  whence  it  arose. ^ 
The  House  of  Commons  was,  in  his  opinion,  to  the 
higher  part  of  government  what  juries  are  to  the  lower. 
The  true  liberty  of  that  House  consisted  in  its  servitude 
to  the  people  —  a  servitude  which  is,  like  obedience  to 
divine  law,  "perfect  freedom."  If  the  House  were  to 
fail  of  this  service,  it  would  seek  an  abject  and  unnatural 
servitude  elsewhere.  And  if  there  were  to  be  a  failure 
in  the  proper  control  of  the  House  of  Commons,  the  pres- 
ent confusion  would  continue  until  "  the  people  were  hur- 
ried into  all  the  rage  of  civil  strife,  or  until  they  were 
sunk  into  the  dead  repose  of  despotism." 

Ten  years  later  Burke  returned  to  the  same  subject. 
At  that  time  he  judged  the  Commons  to  have  failed 
in  their  service  to  the  people.  He  compared  them 
1  Vol.  I.,  p.  419.  2  Vol.  I. ,  p.  396. 


I 


CHAP.  XLviii       BURKE   AND  THE   CONSTITUTION  465 

to  one  who  had  become  the  victim  of  alien  affections. 
They  who  loved  the  Commons  most  were  they  who  were 
most  deeply  offended.  "  A  jealous  love  lights  his  torch 
from  the  firebrands  of  the  furies."  Addressing  the 
House,  he  said  :  "  They  who  call  upon  you  to  belong 
wholly  to  the  people  are  those  who  wish  you  to  return 
to  your  proper  home  ;  to  the  sphere  of  your  duty,  to  the 
post  of  your  honour.  .  .  .  We  have  furnished  the  peo- 
ple of  England  (indeed  we  have)  some  real  cause  of  jeal- 
ousy. Let  us  return  to  our  legitimate  home,  and  all  jars 
and  all  quarrels  will  be  lost  in  embraces.  Let  the  Com- 
mons in  Parliament  assembled  be  one  and  the  same  thing 
with  the  Commons  at  large.  The  distinctions  that  are 
made  to  separate  us  are  unnatural  and  wicked  contriv- 
ances. Let  us  identify,  let  us  incorporate,  ourselves  with 
the  people.  "1 

These  and  other  passages  which  might  be  quoted  prove 
Burke's  power  of  resistance  to  the  encroachments  of  the 
Crown.  From  selected  passages  a  careless  reader  might 
get  the  impression  that  he  had  decided  leanings  toward 
democracy.  Certainly  no  one  has  surpassed  him  in  the 
vivid  portrayal  of  the  dangers  to  the  Constitution  from 
royal  interference.  But  after  the  breaking  out  of  the 
French  Revolution  Burke  became  an  equally  effective 
defender  of  the  Crown,  the  Church,  and  the  House  of 
Lords  against  what  he  deemed  to  be  the  encroachments  of 
the  people.  It  is  difficult  for  one  who  is  in  sympathy 
with  modern  democracy  to  read  the  utterances  of  Burke, 
delivered  before  the  French  Revolution,  along  with  those 
delivered  after  that  period,  and  not  feel  that  he  is  strangely 
inconsistent  with  himself.  One  page  appears  to  be  the 
writing  of  a  modern  democrat,  another  that  of  an  aristo- 
crat and  a  conservative.  It  is  not  one  of  the  objects  of 
this  chapter  to  defend  Mr.   Burke  from  the  charge  of 

iVol.  II.,p.  211. 
2h 


466     GROWTH   OF  THE  ENGLISH  CONSTITUTION    chap,  xlviii 

inconsistency,  but  it  may  help  to  an  understanding  of  the 
English  Constitution,  and  may  incidentally  throw  some 
light  upon  Burke's  character,  if  we  try  to  read  all  his 
writings  as  logically  consistent. 

Burke  never  professed  to  believe  in  democracy.  He 
did  profess  to  believe  in  the  English  people,  though  never 
in  the  wisdom  of  trying  to  settle  political  problems  by 
majorities  of  the  people  "told  by  the  head."  Even  when 
he  appeared  before  his  constituents  at  Bristol  as  a  popular 
agitator,  he  told  them  plainly  that  he  had  more  important 
duties  to  perform  than  to  seek  to  act  in  accordance  with 
their  particular  requests.  When  Pitt  had  been  installed 
in  office,  when  the  King  had  been  forced  to  give  up  his 
secret  Cabinet,  then  Burke  regarded  the  Constitution  as 
rescued  from  peril.  It  was  not  until  several  years  later 
that  what  seemed  to  him  a  new  menace  to  its  security 
arose.  The  doctrines  of  the  French  Revolutionists  and 
of  the  societies  in  England  devoted,  as  he  believed,  to  the 
promotion  of  revolutionary  principles,  constituted  a  fresh 
danger.  While  avowing  his  admiration  for  the  English 
Revolution  of  a  century  before,  Burke  declared  that  in 
his  opinion  the  admirable  and  the  distinguishing  feat- 
ure of  that  great  overturning  was  that  it  was  "a  revo- 
lution not  made,  but  prevented."  ^  A  king  was  then 
discarded  to  save  the  Constitution.  The  monarchy  was 
not  impaired ;  rather  it  was  strengthened.  The  Whig 
revolution  was  great  and  beneficent  because  it  kept  every 
part  of  the  Constitution  intact. 

Coincident  with  the  agitation  in  France,  which  preceded 
and  accompanied  the  Revolution,  there  had  appeared  in 
England  those  who  were  disposed  to  ridicule  the  English 
Constitution.  Some  even  maintained  that  England  not 
only  had  not  a  good  constitution,  but  that  she  had  no  con- 
stitution at  all ;  that  there  never  had  been  a  constitution 


1  Vol.  III.,  p.  15. 


i 


CHAP.  XLViii        BURKE   AND  THE   CONSTITUTION  407 

in  England ;  that  a  constitution  was  yet  to  be  created  *, 
that  a  constitution  is  a  thing  antecedent  to  government, 
and  must  come  from  the  people ;  that  everything  in  Eng- 
land was  the  reverse  of  what  it  should  be ;  that  there  was 
just  enough  to  enslave  the  people  more  effectively  than 
by  despotism  ;  that  the  House  of  Lords  was  a  monster, 
and  kings  the  greatest  enemies  of  mankind;  that  it  is 
ridiculous  to  say  that  power  to  declare  war  resides  in  a 
metaphor  (the  Crown)  shown  at  the  Tower  for  sixpence, 
etc.,  etc. 

Englishmen  of  to-day  can  listen  by  the  hour  to  such 
talk  as  this  without  the  least  concern,  but  a  hundred 
years  ago  such  language  was  decidedly  inflammatory,  and 
was  especially  calculated  to  arouse  the  mind  of  such  a 
man  as  Burke.  He  set  himself  to  defend  with  infinite 
detail  every  part  of  the  Constitution ;  to  traverse  every 
claim  of  democracy.  Since  that  day  it  has  been  difficult 
for  any  Conservative  pleader  to  construct  an  argument 
which  may  not  be  found  in  Burke's  later  writings. 

He  was  a  believer  in  the  venerable  contract  theory 
of  government,  but  when  he  had  taken  a  brief  to  defend 
the  English  Constitution  from  foreign  democratic  ideas, 
the  theory  of  contract  in  its  relation  to  government 
took  ancient  and  classic  shapes  in  his  mind.  "The 
State,"  he  said,  "  ought  not  to  be  considered  as  nothing 
better  than  a  partnership  agreement  in  a  trade  of  pepper 
and  coffee."  "It  is  a  partnership  in  all  science  and  all 
art ;  every  virtue  and  every  perfection ;  a  partnership 
between  the  living  and  those  who  are  dead  and  those  who 
are  yet  to  be  born."  "Each  contract  of  each  particular 
state  is  but  a  clause  in  the  great  primeval  contract  of 
eternal  society  linking  the  lower  with  the  higher  natures, 
connecting  the  visible  with  the  invisible  world,  according 
to  a  fixed  and  inviolr.ble  oath  which  holds  all  physical  and 
all  moral  natures  exch  in  their  appointed  place." 


468     GROWTH   OF  THE   ENGLISH  CONSTITUTION    chap,  xlviii 

Locke  drew  from  this  contract  theory  of  government 
the  conclusion  that  the  people  have  a  right  to  make  or 
to  change  their  constitutions  at  will ;  and  now,  a  hun- 
dred years  later,  Burke  derives  from  the  same  premises 
an  absolute  denial  of  any  such  right.  He  seems,  in- 
deed, to  recall  that  he  had  himself  in  former  days  used 
strong  language  concerning  what  people  might  properly 
do  under  given  conditions ;  but  he  now  explains  that 
such  popular  action  could  not  rightly  occur  except  as 
the  result  of  a  paramount  necessity  which  destroys 
choice.  In  such  case  "this  necessity  itself  is  a  part 
too  of  that  moral  and  physical  disposition  of  things 
to  which  man  must  be  obedient  by  consent  or  force. 
But  if  that  which  is  only  submission  to  necessity  should 
be  made  the  object  of  choice,  the  law  is  broken  ;  nature 
is  disobeyed  and  the  rebellious  are  outlawed,  cast  forth, 
and  "1  —  to  make  a  long  sentence  short  —  are  sent  to  per- 
dition. A  child,  he  tells  us  further,  as  an  incident  to 
being  born,  contracts  certain  filial  relations  which  he  can 
by  no  means  escape.  All  men  are  born  subject  to  the 
compact  binding  not  only  all  the  members  of  the  State  in 
relations  of  duty  to  each  other,  but  the  heavens  and  the 
earth  as  well.  Men  cannot  by  majority  vote  to  change 
their  relations  in  the  State  any  more  than  they  can  change 
the  common  obligations  of  morality  or  the  laws  of  nature. 
Duty  is  not  voluntary.  Duty  and  will  are  even  contra- 
dictory. Men  are  born  to  the  divine  order  of  the  State, 
and  it  is  their  duty  to  submit  to  that  divine  order. 

John  Knox  would  govern  the  world  by  a  divinely 
ordained  Presbyterian  Assembl}^  James  Stuart  would 
govern  by  divinely  ordained  kings.  Edmund  Burke 
would  govern,  England  at  least,  by  a  divinely  ordained 
English  Constitution.  To  him  every  part  of  the  Consti- 
tution had  its  permanent  place,  founded  in  reason  and  in 
1  Payne's  BurTce,  Vol.  II.,  p.  114. 


ciiA.'.  xLvlii       BURKE  AND  THE   CONSTITUTION  469 

the  everlasting  principles  of  morality  which  are  never 
subjected  to  the  fickle  reason  of  man.  To  the  Sovereign 
belongs  an  unchanging  and  unchangeable  position.  It  is 
evidence  of  almost  superhuman  wisdom  on  the  part  of  the 
statesmen  of  the  Great  Revolution  that  they  preserved  the 
Crown  intact.  Aristocracy  is  of  the  very  essence  of  a  state 
of  civil  society.  "  To  give  therefore  no  more  importance 
in  the  social  order,  to  such  descriptions  of  men  than  that 
of  so  many  units,  is  a  horrible  usurpation."  The  House 
of  Lords  is  a  part  of  the  divine  order.  The  Church  is 
likewise  an  integral,  a  natural,  and  an  essential  part  of  the 
State. 

It  is  after  Burke  has  described  and  defended  each  sepa- 
rate part  of  the  government  that  he  is  prepared  to  state 
explicitly  what  he  means  by  the  people.  "  When  great 
multitudes  act  together  under  the  discipline  of  nature  [the 
English  Constitution],  I  recognize  the  People  ...  In 
all  things  the  voice  of  this  grand  chorus  of  national  har- 
mony ought  to  have  a  mighty  and  decisive  influence.  But 
when  you  disturb  this  harmony,  when  you  break  up  this 
beautiful  order,  this  array  of  truth  and  nature,  as  well  as 
of  habit  and  prejudice,  when  you  separate  the  common 
sort  of  men  from  their  proper  chieftains  so  as  to  form  them 
into  an  adverse  army,  I  no  longer  know  that  venerable 
object  called  the  people  in  such  a  disbanded  race  of  desert- 
ers and  vagabonds."  ^ 

Though  it  may  be  difficult  to  prove  that  Burke's  later 
writings  are  in  all  respects  consistent  with  his  earlier 
utterances,  there  is  yet  this  much  of  consistency,  at  least, 
in  all.  Every  impassioned  word  was  in  defence  of  what 
he  calls  the  Constitution.  It  was  because  of  his  fear  that 
the  King  and  the  King's  friends  were  about  to  destroy  the 
Constitution  that  he  exhorted  the  colonists  to  resist  the 
royal  government.  It  was  also  because  of  his  alarm  lest 
iVol,  III.,p.  409. 


470     GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xlviii 

the  Constitution  should  be  endangered  by  French  demo- 
cratic notions  that  he  invented  every  conceivable  argu- 
ment against  democracy. 

Let  us  now  inquire  what  did  the  word  "  constitution " 
mean  to  Mr.  Burke.  Like  others  he  used  the  word  with 
different  meanings,  but  that  signification  which  we  need 
especially  to  note  is  this:  The  Constitution  of  England  is 
that  result  of  the  providential  order  in  English  history 
which  has  given  to  England  the  best  government  in  the 
world.  The  Constitution  as  thus  defined  was  to  be  under- 
stood in  the  measure  of  ability;  and  it  was  to  be  wor- 
shipped where  it  was  not  understood.  Peoples  of  other  na- 
tionalities have  been  victims  of  a  belief  that  events  in  their 
past  history  had  fastened  upon  them  intolerable  burdens. 
The  English  people,  on  the  contrary,  became  possessed 
by  the  notion  that  their  history  had  worked  out  for  them 
alone  a  beneficent  development  of  liberty.  To  this  they 
gave  the  name  Constitution,  and  under  that  name  it  was 
apotheosized  and  worshipped.  At  that  shrine  Burke  was 
a  worshipper  both  in  youth  and  in  age.  In  this  order  of 
worship  there  is  no  difference  between  Whig  and  Tory. 

In  closing  his  Appeal  from  the  New  Whigs  to  the  Old, 
in  1791,  Burke  declared  that,  if  a  new  order  were  coming 
on,  and  all  the  political  opinions  which  our  ancestors  have 
worshipped  as  revelations  must  pass  away  as  dreams,  he 
would  choose  rather  to  be  the  last  as  well  as  the  least  of 
that  race  of  men  (the  older  Whigs)  than  the  first  and  the 
greatest  of  those  who  have  coined  to  themselves  Whig 
principles  from  a  French  die  unknown  to  our  fathers  in 
the  Constitution.^ 

This  apotheosis  of   the  old  Constitution,  accomplished 

during  the  latter  part  of  the  last  century,  has  had  much  to^ 

do  with  the  development  of  the  more  modern  democrats 

Constitution.     A  reader  of   Burke's  later  writings   doefi 

1  Vol.  III.,  p.  439. 


CHAP.  XLviii         BURKE  AND  THE  CONSTITUTION  471 

not  need  to  be  told  that  there  was  nothing  democratic 
about  the  Constitution  which  he  glorified.  Yet  had  Burke 
lived  in  the  full  possession  of  his  great  faculties  until  the 
time  of  the  Reform  Act  of  1832,  there  is  a  strong  proba- 
bility that  he  would  have  stood  with  the  Reformers.  The 
nightmare  of  the  French  Revolution  had  passed  away. 
The  dangers  to  the  Constitution  which  had  so  impressed  his 
mind  during  the  earlier  years  of  the  reign  of  George  III. 
seemed  to  have  returned  with  more  real  and  threatening 
force  than  at  any  previous  time  ;  and  the  only  apparent 
means  of  escape  was  by  the  creation  of  a  larger  indepen- 
dent voting  constituency.  Certainly  consistency  with  his 
earlier  principles  wtuld  have  led  him  to  support  the 
Reform  Bill  in  the  hope  of  securing  through  its  results 
that  beneficent,  conservative  action  of  the  people  upon  the 
government  which  he  had  once  regarded  as  so  essential  a 
part  of  the  old  Constitution. 

It  should  be  remembered  that  in  the  democratic  Con- 
stitution of  the  present  day,  harmony  and  efficiency  of 
action  are  attained  by  the  two  Houses  consenting  to  be 
led  by  the  Cabinet.  The  delicate  equipoise  of  checks  and 
balances  is  now  found  not  chiefly  in  the  House  of  Lords, 
the  House  of  Commons,  the  Crown,  nor  in  any  legally 
recognized  institution,  but  in  the  political  parties  and  in 
the  mind  of  the  people.  In  the  earlier  Constitution  which 
Burke  described  that  equipoise  did  inhere  mainly  in  those 
legal,  visible  institutions.  Perils  from  two  distinct  and 
widely  different  sources  seemed  to  him  at  different  times 
in  liis  life  to  threaten  that  Constitution.  He  was  first 
uneasy  lest  the  nice  balance  of  powers  should  be  over- 
thrown by  a  permanent  executive  control  over  the  two 
Houses  ;  and  while  under  the  dominion  of  that  fear,  he 
was  ready  to  give  countenance  to  the  English  mob  led  by 
Wilkes,  ready  to  encourage  the  rebellious  colonies  in 
America,  or  to  appeal  directly  to  the  English  people  to 


il2     GROWTH  01*  THE  ENGLISH  CONSTITUTION    chap,  xlviii 

save  their  Constitution  from  ruin.  In  after  years  he 
became  a  prey  to  the  dread  of  constitutional  ruin  through 
the  rise  of  democracy  resulting  in  the  domination  of  crude 
popular  majorities. 

Mark  now  that  the  actual  Constitution  of  to-day  has 
been  attained  by  the  establishment  of  both  those  changes 
which  Burke  foresaw  and  dreaded.  At  the  time  of  the 
agitation  for  the  Reform  Act  more  than  a  hundred  years 
of  practically  unbroken  experience  from  the  accession  of 
the  house  of  Hanover  had  convinced  all  statesmen  of 
every  name  who  possessed  faculties  which  admitted  of  the 
entertainment  of  a  conviction,  that  the  two  Houses  were, 
as  a  matter  of  fact,  controlled  by*the  Executive.  The 
question  which  remained  unsettled  was,  Who  shall  con- 
trol the  Executive  ?  To  that  question  the  unbroken  ex- 
perience of  the  preceding  seventy  years  made  answer  that 
the  Executive  would  be  controlled  by  the  will  of  the  King. 
Now  we  see  that  the  Reform  Acts  have  resulted  and  are 
resulting  in  placing  this  control  in  the  hands  of  that  other 
power  feared  by  Mr.  Burke;  viz.  "The  People  of  Eng- 
land told  by  the  head." 


CHAPTER  XLIX 

RECENT  EXPOSITOES   OF   THE  CONSTITUTION 

jj^ROM  Blackstone  and  Burke  to  Bagehot,  Dicey,  and 
-^  Anson  there  intervenes  a  century  of  time  and,  what 
is  much  more  to  the  purpose  in  the  study  of  our  subject, 
there  has  come  in  an  era  of  scientific  research.  Mr.  Dicey 
introduces  his  book  by  two  quotations,  one  from  Burke 
and  the  other  from  Hallam,  in  which  the  reader  is  called 
upon  to  worship  or  to  admire  the  matchless  perfections  of 
the  English  Constitution.  Commenting  upon  these  quota- 
tions, Mr.  Dicey  says :  "  The  present  generation  must  of 
necessity  look  on  the  Constitution  in  a  spirit  different  from 
the  sentiment  either  of  1791  or  of  1818.  We  cannot  share 
the  religious  enthusiasm  of  Burke,  raised  as  it  was  to  the 
temper  of  fanatical  adoration  by  just  hatred  of  those 
'  doctors  of  the  modern  school,'  who  when  he  wrote,  were 
renewing  the  rule  of  barbarism  in  the  form  of  the  reign 
of  terror ;  we  cannot  exactly  echo  the  fervent  self-com- 
placency of  Hallam,  natural  as  it  was  to  an  Englishman 
who  saw  the  institutions  of  England  standing  and  flourish- 
ing, at  a  time  when  the  attempts  of  foreign  reformers  to 
combine  freedom  with  order  had  ended  in  ruin.  At  the 
present  day  students  of  the  Constitution  wish  neither  to 
criticise  nor  to  venerate,  but  to  understand." 

In  harmony  with  this  spirit  are  the  works  of  Dicey  and 
Anson.  In  the  spirit  of  modern  science  they  explain 
the   English   government.     They  neither  commend   nor 

473 


474       GEOWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  xlix 

condemn.  They  are  not  at  all  anxious  to  point  out  im- 
pending dangers  to  the  community  arising  from  any 
doctrine,  opinion,  or  custom.  Judged  by  what  they  do 
and  say,  we  have  reason  to  conclude  that  they  think  it  is 
entirely  safe  to  make  known  all  the  actualities  of  the 
English  government.  They  are  not  primarily  concerned 
with  the  safety  of  the  State,  but  with  the  explanation  of  it. 
Mr.  Bagehot's  work  was  earlier,  and  was  written  in  a 
different  spirit,  and  for  a  different  purpose.  He  believed 
that  England  had  hit  upbn  a  method  of  governing  which 
was  of  immense  importance  to  the  human  race.  He  fore- 
saw the  coming  in  of  Democracy,  and  with  its  too  hasty 
coming  he  believed  this  transcendent  type  of  government 
would  be  imperilled.  Judging  by  what  he  wrote,  we  may 
conclude  that  it  was  his  ambition  to  make  it  easier  to 
extend  the  English  Cabinet  system  to  countries  where 
monarchy  had  been  already  rejected,  and  to  preserve  the 
system  in  existing  monarchies  even  though  monarchy  itself 
should  entirely  disappear.  Mr.  Bagehot  was  an  advocate. 
He  advocated  the  Cabinet  system  as  against  the  Presi- 
dential system  as  illustrated  in  the  United  States.  He 
did  not  advocate  the  abolition  of  monarchy  in  England 
because  he  was  convinced  that  such  a  policy  now  would 
endanger  the  Cabinet  system.  But  with  infinite  pains  he 
laboured  to  convince  his  fellow-citizens  that  a  non-royal 
Cabinet  would  work  just  as  well,  and  in  many  respect 
better  than  a  royal  Cabinet.  Mr.  Bagehot  is,  however, 
not  a  whit  behind  other  recent  writers  in  his  disposition 
to  analyze  and  explain  the  real  English  Constitution.  His 
work  is  addressed  to  philosophers  and  statesmen,  and  he 
evidently  intended  that  these  should  understand  the  real 
Constitution.  He  does  not  worship  the  Constitution  him- 
self, nor  does  he  expect  his  readers  to  do  so.  He  is  as  far 
from  the  spirit  of  Burke,  in  this  respect,  as  is  Dicey.  In 
his  view  the  Cabinet  is  not  ancient ;   it  is  not  venerable. 


CHAP.  xLix     EXPOSITORS   OF   THE   CONSTITUTION  475 

It  is  simply  a  happy  accident.  Its  importance  arises 
entirely  from  the  fact  that  it  is  the  best  machine  that  has 
been  discovered  for  securing  the  ends  of  good  government. 

Mr.  Bagehot's  fear  of  Democracy,  however,  was  as  real 
and  as  active  as  was  that  of  Burke.  Yet,  as  a  disciple  of 
the  new  scientific  school,  he  could  not  join  in  the  worship 
of  an  ancient  and  venerable  constitution.  In  his  writings 
there  is  an  illustration  of  the  putting  of  new  wine  into 
old  bottles.  He  writes  a  book  which  seems  fitted  to  de- 
stroy every  feeling  of  adoration  in  the  British  subject,  and 
yet  in  the  same  lines  he  contends  that  the  destructive 
inrush  of  Democracy  can  only  be  prevented  by  diligently 
husbanding  and  prolonging  the  spirit  of  blind  adoration 
and  worship  on  the  part  of  the  ignorant  masses.  He  would 
preserve  the  ancient  and  dignified  parts  of  the  English 
Constitution  for  the  purpose  of  deceiving  the  English 
people  as  to  the  facts  of  their  government.  He  would 
have  the  privileged  ruling  classes  enter  into  a  sort  of  con- 
spiracy to  perpetuate  various  useful  deceptions. 

The  peculiar  interest  in  Mr.  Bagehot's  book  arises  from 
the  fact  that  he  saw  as  clearly  as  any  expositor  the  real 
nature  of  the  Constitution  of  his  day  with  its  tendency  to 
Democracy,  and  with  relentless  courage  described  it  with- 
out disguise.  At  the  same  time,  he  saw  with  equal  clear- 
ness the  ancient  Constitution  based  in  large  part  upon 
sentiment,  adoration,  and  a  belief  that  certain  things 
were  true  which  were  not  true.  The  continuance  of  the 
ancient  sentiments  seemed  to  him  necessary  to  the  present 
safe  conduct  of  the  government. 

It  has  been  near  thirty  years  since  Mr.  Bagehot  wrote, 
and  Democracy  has  surely  developed  as  rapidly  as  he 
feared  that  it  would.  Many  of  the  methods  which  he 
feared  would  be  adopted  by  the  political  parties  in  their 
efforts  to  win  the  votes  of  the  labouring  classes  have  been 
in  common  use.     Yet,  so  far  as  appears,  the  Cabinet  sys- 


476       GROWTH  OF  THE   ENGLISH   CONSTITUTION    chap,  xlix 

tern  is  as  firmly  established  as  ever.  The  new  voters 
appear  as  conservative  as  the  old.  Surely  the  party 
which  is  called  by  that  name  has  no  reason  to  complain 
of  its  treatment  at  the  hands  of  the  newly  enfranchised. 

There  is  much  reason  in  Mr.  Bagehot's  contention  that 
it  takes  a  long  time  to  adequately  test  the  effect  of  a  new 
policy.  Yet  surely  to  the  superficial  observer  of  current 
English  politics  there  seems  no  reason  for  alarm  in  view 
of  the  Democratic  experiment.  Moreover,  Mr.  Bagehot's 
elaboration  of  the  necessity  for  preserving  the  dignified 
parts  of  the  English  Constitution  in  order  to  deceive  the 
English  voter,  seems  at  the  present  day  grotesque  and 
absurd. 

There  are  still  those  whose  opinions  we  are  accustomed 
to  treat  with  respect  who  give  expression  to  the  ancient 
dread  of  Democracy.  Among  the  latest  of  the  writings 
of  Sir  Henry  Maine  was  a  solemn  warning  against  too 
great  reliance  upon  the  Democratic  experiment,  and  dur- 
ing this  year,  1896,  Mr.  Lecky  has  published  an  elaborate 
work,  in  which  he  would  persuade  his  fellow-citizens  that 
the  English  Constitution  reached  the  acme  of  its  per- 
fections during  the  years  previous  to  the  Reform  Act  of 
1868,  when  Lord  Palmerston  was  the  most  conspicuous 
English  statesman.  These  protests  against  reliance  upon 
Democracy  are  to  be  expected.  The  wonder  is  that  they 
are  not  more  numerous.  It  is,  as  its  ardent  friends  main- 
tain, a  new  experiment  in  human  government.  Only  the 
enemies  of  Democracy  claim  that  it  has  been  tried  in 
■former  generations.  It  is  to  be  expected  that  a  new  ex- 
periment involving  the  lives  and  destiny  of  the  race  should 
be  stoutly  questioned  at  every  stage  of  its  progress. 

Monarchy  is  also  a  mere  experiment  in  government. 
And  so  are  the  various  forms  of  aristocracy.  But  these 
are  ancient  experiments,  and  the  conviction  grows  in  the 
minds  of  men  that  personal  government  in  the  hands  of 


i 


CHAP.  xLix      EXPOSITORS  OF  THE   CONSTITUTION 


477 


a  monarch,  or  in  the  hands  of  a  privileged  few,  has  been 
tried  long  enough.  The  advent  of  Democracy  and  the 
advent  of  the  age  of  scientific  research  are  not  two  things. 
They  are  different  manifestations  of  the  same  thing.  We 
are  as  likely  to  get  rid  of  the  one  as  we  are  of  the  other. 


CHAPTER   L 

THE   UNITY   OF   THE   ENGLISH 

"TDREVIOUS  chapters  contain  frequent  references  to 
-■-  political  strife  and  contention.  This  is  necessitated 
by  the  fact  that  the  Constitution  to  be  described  and 
accounted  for  is  apparently  based  upon  political  parties. 
''  Political  parties,"  said  Mr.  Bagehot,  "  are  of  the  very 
essence  of  the  Constitution."  If  we  are  to  account  for 
the  origin  of  political  parties,  we  can  find  it  only  in  the 
contentions  of  the  preceding  centuries.  It  is  easier  to 
write  a  history  of  the  wars  and  strifes  of  a  nation  than  it 
is  to  write  a  history  of  its  harmonies  and  concords  ;  yet  a 
knowledge  of  the  harmonies  and  concords  is  vastly  more 
important  than  is  a  knowledge  of  the  strife.  The  natural 
tendency  of  faction  and  civil  strife  is  to  produce  anarchy 
and  to  destroy  the  State.  But  in  the  case  of  England,  we 
have  seen  that  the  State  has  not  been  destroyed.  There 
has  been  seen  in  the  midst  of  the  conflict  a  prevailing 
tendency  to  greater  unity.  When  the  English  desire  to 
condemn  a  policy  which  the  government  seeks  to  foist 
upon  them,  and  have  exhausted  the  ordinary  arguments 
against  the  measure,  they  have  a  way  of  putting  forth  as 
the  final,  conclusive  argument  the  declaration,  "  It  is  un- 
English."  The  assumption  is  that  not  a  man,  woman,  or 
child  in  the  kingdom  can  be  found  to  approve  a  thing 
which  is  un-English. 

It  is  this  feeling  of  unity  which  is,  after  all,  the  impor- 

478 


I 


CHAP.  L  THE    UNITY   OF  THE   ENGLISH  479 

tant  element  in  the  English  Constitution.  But  for  it  the 
Constitution  would  collapse.  A  history  which  should 
make  clear  the  process  whereby  the  sentiment  of  national 
unity  has  been  developed  would  be  worth  more  to  the  race 
than  all  the  histories  of  the  English  people  and  their  gov- 
ernment which  have  yet  been  produced.  The  history  of 
political  strife  does  not  account  for  the  national  harmony. 
National  harmony  has  grown  in  spite  of  the  strife,  but 
not  because  of  it ;  it  has  persisted  in  spite  of  cruelty  and 
oppression,  but  not  because  of  them.  The  history  of  war 
and  oppression  and  of  political  contest  of  every  sort  is  of 
use  chiefly  as  it  sheds  light  upon  the  growth  of  national 
unity.  It  is  one  thing  to  say  that  the  present  English 
Constitution  is  based  upon  party,  but  it  is  quite  another 
thing  to  say  that  partisan  strife  tends  to  promote  the  sta- 
bility of  the  Constitution. 

A  political  meeting  held  in  South  London  some  years 
ago  had  been  announced  by  the  officers  of  the  Liberal 
party  as  a  meeting  of  labouring  men  to  be  addressed  by 
a  man  with  a  wide  reputation  as  an  authority  on  the 
industrial  history  of  England.  The  opening  sentence  in 
his  address  was  a  startling  statement  to  the  effect  that  the 
Tory  party  was  a  party  of  rapine  and  plunder,  and  the 
spirit  of  the  entire  address  was  in  harmony  with  that 
declaration.  Now  the  more  intelligent  labouring  men 
in  the  audience  knew  perfectly  that  they  were  not  ex- 
pected to  believe  such  statements,  in  a  partisan  speech 
delivered  for  partisan  purposes.  They  knew  that  it  is 
the  custom  of  some  party  leaders  to  pretend  to  believe 
that  the  other  party  is  on  the  point  of  leading  the  country 
to  ruin.  If  the  rank  and  file  of  the  parties  accepted  as 
true  what  is  said  in  partisan  debate,  the  present  form  of 
government  would  be  impossible.  This  war  of  words  has 
taken  the  place  of  the  former  wars  with  the  sword.  It  is 
a  more  civilized  method  of  warfare  suited  to  the  milder 


480  GROWTH  OF  THE  ENGLISH  CONSTITUTION    chap,  i 

age  in  which  we  live.  As  it  is  a  mistake  to  suppose  that 
the  civil  wars  of  the  past  are  a  cause  of  the  national 
unity,  so  it  is  now  a  mistake  to  suppose  that  partisan 
verbal  strife  is  a  cause  of  the  stability  of  the  Constitu- 
tion. The  Constitution  exists  in  spite  of  partisan  debate, 
and  not  because  of  it. 

The  present  Constitution  depends  for  its  stability  upon 
the  rational  and  conservative  character  of  the  people. 
By  a  study  of  the  history  of  political  strife  we  may  gain 
a  satisfactory  view  of  the  origin  of  the  Crown  and  its 
present  place  in  the  Constitution ;  of  the  Cabinet  and  its 
present  position ;  of  the  House  of  Commons,  the  House  of 
Lords,  the  Church,  the  courts,  and  the  voting  constituency. 
The  present  relations  of  all  these  and  how  they  came  to 
be  what  they  are  may  be  learned  from  the  history  of  politi- 
cal strife.  But  the  most  important  factor  of  all,  the  spirit 
and  temper  of  the  people,  are  all  the  time  assumed.  There 
is  little  attempt  to  account  for  them.  History  as  generally 
written  may  properly  be  defined  as  a  narration  of  the  more 
easily  observed  and  less  important  experiences  of  social  and 
political  life  ;  and  English  history,  even  English  consti- 
tutional history,  is  no  exception  to  this  definition. 

It  is  possible  to  get  some  suggestions  as  to  the  early 
development  and  growth  of  the  national  spirit  among  the 
English  people  from  the  character  of  King  Alfred.  It 
matters  little  whether  the  life  of  King  Alfred  is  fact  or 
fiction;  he  embodies  for  his  countrymen  a  high  ideal  of 
self-sacrifice  and  service  for  the  good  of  his  fellow-men. 
It  is  an  important  fact  that  Englishmen  of  all  classes  have 
had  such  a  character  held  up  for  their  admiration,  just  as 
the  veneration  of  Americans  for  Washington  has  been  to 
them  an  untold  blessing.  Such  characters  are  a  constant 
rebuke  to  self-seeking ;  a  constant  stimulus  to  self-sacri- 
fice for  the  common  good. 

With  something  of  the  same  affectionate  feeling  with 


CHAP.  L  THE  UNITY  OF  THE  ENGLISH  481 

which  they  regarded  their  good  King  Alfred,  the  early- 
English  looked  upon  the  good  laws  of  the  past.  The  laws 
of  Edgar  and  the  laws  of  Edward  the  Confessor  were  a 
hallowed  memory.  The  alien  kings  won  the  affections  of 
their  English  subjects  by  manifesting  a  friendly  spirit 
towards  the  good  laws  of  former  times.  These  were  not 
regarded  as  harsh  and  arbitrary  enactments  such  as  the 
Tudors  imposed  upon  the  powerful  classes.  They  were 
believed  to  embody  the  good  ways  of  a  more  favoured 
age.  And  when  the  barons  forced  Magna  Charta  from 
the  unwilling  John,  the  people  understood  that  document 
to  contain  a  summary  of  all  the  good  customs  of  the  past. 
The  English  may  also  have  learned  lessons  of  brotherly 
love  from  the  French  who  came  over  with  the  Conqueror, 
and  settled  and  lived  among  them.  History  has,  it  is 
true,  given  emphasis  to  a  very  different  set  of  facts.  The 
brutality  and  the  cruelty  of  the  event  were  much  more 
easily  observed  than  the  sympathy  and  the  affection 
which  sprang  up  between  the  alien  peoples.  In  his  char- 
ter to  the  city  of  London  the  Conqueror  expressed  his 
will  that  his  English  and  French  subjects  should  alike 
enjoy  their  accustomed  privileges.  From  the  beginning, 
the  under-tenantry  among  the  Normans  manifested  a  dis- 
position to  unite  with  the  English  tenants  in  like  condi- 
tion to  maintain  their  common  rights.  This,  it  may  be 
said,  is  a  mere  incident  in  the  strife  of  the  under-tenants 
against  their  lords;  nevertheless,  it  is  an  incident  of  greater 
consequence  than  the  fact  of  the  strife.  The  fusing  of 
French  and  English  into  one  people  having  one  language 
and  one  interest,  is  the  great  fact  of  the  period.  At  the 
same  time  it  is  a  fact  of  such  a  character  that  the  historian 
has  found  in  it  few  incidents.  It  belongs  to  that  part  of 
history  which  is  too  important,  too  much  of  the  nature  of 
common  life,  to  furnish  an  extended  field  for  interesting 
narration. 
2i 


482  GROWTH  OF  THE   ENGLISH   CONSTITUTION     chap,  l 

It  undoubtedly  has  tended  to  unity  and  to  ultimate 
good  government  in  England  that  France  has  so  much  of 
the  time  fulfilled  the  mission  of  supplying  an  example  of 
conditions  to  be  dreaded  and  avoided.  In  the  fact  that 
the  weakness  of  the  French  Crown  had  led  to  anarchy  and 
confusion  the  Conqueror  found  a  strong  motive  for  hus- 
banding every  element  of  strength  in  the  English  Crown. 
In  more  recent  centuries,  when  the  Stuarts  were  striving 
to  fasten  upon  the  English  an  absolute  government,  the 
absolute  rule  of  the  Bourbons  appeared  as  an  example  to 
be  avoided  and  resisted.  Still  later,  while  democracy  has 
run  riot  in  France,  the  English  have  by  common  consent 
taken  on  democracy  in  a  restrained,  conservative  manner. 

But  one  of  the  most  important  sources  of  unity  and 
harmony  among  the  English  has  been  the  Christian  reli- 
gion. The  character  of  King  Alfred  had  power  over  the 
people  because  it  was  a  Christian  character.  When  we 
read  of  the  oppressions  of  barons  and  bishops,  and  all  who 
were  in  places  of  power,  we  forget  that  these  same  people 
were  Christians.  There  is  no  more  reason  to  believe  that 
they  were  hypocrites  than  there  is  to  believe  that  the  cor- 
responding classes  to-day  are  hypocrites.  To  the  mind 
of  the  Christian,  it  is  meritorious  to  suffer  a  wrong  rather 
than  to  commit  a  wrong.  Brutal  and  cruel  as  the  strife 
often  was,  it  was  at  all  times  tempered  and  mollified  by  the 
facts  of  Christian  experience.  The  innumerable  charities 
and  benevolent  institutions  of  the  Middle  Ages  were  gifts 
from  the  rich  ruling  classes.  We  have  no  right  to  assume 
that  when  the  barons  sought  to  win  the  support  of  the 
people,  they  were  wholly  devoid  of  interest  in  their  well- 
being.  Much  less  have  we  a  right  to  suppose  that  the 
clergy  were  void  of  interest  in  the  welfare  of  the  people. 
We  reprobate  the  conduct  of  the  clergy  because  they 
failed  to  act  in  accordance  with  the  highest  ideals  of  Chris- 
tian requirement.     We  do  not  appreciate,  as  we  ought, 


I 


CHAP.  L  THE   UNITY   OF   THE   ENGLISH  483 

how  desperate  would  have  been  the  case  of  our  ancestors 
if  those  high  ideals  had  not  existed.  An  act  of  crueltj- 
committed  in  the  name  of  the  Christian  religion  always 
seems  the  worse,  because  of  our  instinctive  resentment  of 
the  incongruity.  We  have  always  had  an  exaggerated 
notion  of  the  extent  and  the  horrors  of  such  events  as 
the  Massacre  of  St.  Bartholomew  and  the  persecutions  of 
the  reign  of  Mary  Tudor.  And  the  reaction  and  the  re- 
pentance in  view  of  such  events  is  made  more  prompt 
and  vital  because  of  their  obvious  inconsistency  with  the 
essential  spirit  of  the  religion. 

It  is  true  that  many  of  the  civil  conflicts  have  been  fos- 
tered by  religious  differences,  and  that  religious  contro- 
versies have  had  an  important  part  in  the  development  of 
political  parties.  But  it  should  be  borne  in  mind  that 
the  modern  party  strife  is  much  less  brutal  and  less  divi- 
sive in  its  tendency  than  were  the  class  factions  which  it 
has  displaced.  We  do  not,  however,  get  an  adequate  idea 
of  the  uniting  power  of  the  Christian  religion  by  an  effort 
to  balance  advantages  and  disadvantages  which  may  have 
resulted  from  religious  controversy.  That  power  is  seen 
in  the  fact  that  at  all  times,  in  the  midst  of  the  fiercest 
political  and  religious  contests,  there  have  been  those  who 
believed  and  acted  upon  the  belief  that  religion  itself  was 
more  than  any  authoritative  human  expression  of  religion  ; 
more  than  Romanism,  more  than  Protestantism,  more  than 
Puritanism,  more  than  Episcopalianism,  more  than  Presby- 
terianism,  more  than  Methodism.  There  has  been  much 
vindictive  cruelty  in  the  treatment  of  religious  opponents, 
yet  there  have  always  been  those  who  revolted  at  the 
unchristian  spirit  of  such  a  course,  and  who  have  insisted 
upon  the  duty  of  placing  religion  above  sect  or  religious 
party.  The  strife  between  Romanist  and  Protestant  was 
long  and  bitter,  but  it  was  partly  due  to  the  many  cruel 
and  unjust  political  acts  committed  in  the  name  of  reli- 


484  GROWTH  OF  THE   ENGLISH  CONSTITUTION     chap,  l 

gion.  The  time  came,  however,  when  both  Romanist  and 
Protestant  were  ashamed  of  their  anti- Christian  hatred. 
There  can  be  no  doubt,  upon  the  whole,  that  in  spite  of 
the  many  religious  controversies  Christianity  has  been  the 
strongest  influence  toward  the  unity  of  the  nation. 

Literature  has  had  no  mean  share  in  the  promotion  of 
national  unity.  In  politics,  it  is  often  difficult  rightly  to 
distinguish  cause  and  effect.  A  literary  product  may 
be  a  result  of  the  national  spirit,  while  it  may  like- 
wise be  a  promoter  of  the  national  spirit.  Chaucer  and 
Wiclif  stand  at  once  for  a  revival  in  learning,  for  a  reli- 
gious awakening,  and  for  unusual  social  and  political 
activity.  The  great  literary  baptism  came  to  England 
after  the  strong  Tudor  hand  had  kept  order  for  the  greater 
part  of  a  century.  The  Tudors  patronized  learning,  and 
they  also  respected  the  dominant  elements  among  the  peo- 
ple. The  literary  revival  of  the  Elizabethan  Age  coincided 
with  the  birth  of  conscious  political  importance  on  the  part 
of  large  numbers  of  the  middle-class  folk  in  town  and 
country.  It  is  not  unlikely  that  one  of  the  causes  of  the 
growth  of  freedom  of  debate  and  freedom  of  criticism 
upon  the  acts  of  the  government  was  the  development  in 
the  House  of  Commons  of  a  style  of  oratory  fascinating 
both  to  speakers  and  to  hearers.  The  higher  forms  of 
literature  are  non-contentious  and  belong  to  the  uniting 
forces  of  the  nation.  Oratory  plays  an  important  part  in 
the  contentions  of  politics.  The  men  who  maintained 
the  cause  of  Parliament  before  the  Rebellion  against 
Charles  I.  were  for  the  most  part  good  speakers.  The 
later  Stuarts  were  also  resisted  by  men  who  knew  how 
to  speak.  Walpole  relied  upon  oratory  as  well  as  upon 
bribery  to  carry  his  measures  through  the  Houses  of  Par- 
liament. Later,  in  the  time  of  George  III.,  when  corrup- 
tion had  destroyed  the  effect  of  oratory  in  Parliament,  it 
was  for  a  time  still  made  effective  before  popular  audi- 


CHAP.  L  THE   UNITY   OF  THE   ENGLISH  485 

ciioes.  Still  later,  when  tyrannical  rule  had  suppressed 
public  meetings,  the  advocate  in  the  courts  of  law  found 
a  place  where  the  voice  of  liberty  could  still  be  lifted. 

It  hence  appears  that  both  literature  and  religion  have 
been  made  to  play  a  part  in  the  strife  of  class  against 
class,  and  have  thus  become  factors  in  that  balancing  of 
the  high  powers  of  State  which  we  call  the  Constitution. 
Yet  the  important  fact  to  be  observed  is  that  by  far  the 
most  important  contribution  of  literature  and  religion  to 
the  stability  of  the  government  has  been  the  influence 
which  they  have  exerted  against  factional  and  party 
strife  and  in  favour  of  the  feeling  of  national  unity. 

It  is  to  be  hoped  that  as  Democracy  attains  an  assured 
success,  political  contention  and  strife  will  hold  a  less 
prominent  place  in  the  constitution  of  the  State.  It  is 
not  unlikely  that  the  fundamental  ideas  of  all  constitu- 
tions will  undergo  yet  greater  changes.  Thus  far,  democ- 
racy has  made  progress  in  the  various  Christian  nations, 
not  so  much  because  of  an  intelligent,  clearly  defined 
belief  in  its  principles,  as  because  of  the  necessity  of  a 
choice  between  evils. 

Political  wisdom  has  been  gained  chiefly  throiigh  actual 
suffering.  At  every  stage  the  people  have  felt  them- 
selves to  be  victims  of  a  system  which  they  did  not  create. 
They  have  been  induced  to  change  or  modify  the  system 
only  when  it  has  seemed  intolerable.  So  long  as  the  people 
think  themselves  to  be  victims  of  their  political  institu- 
tions, they  will  want  their  constitutions  to  appear  to 
abound  in  safeguards  against  hasty  action.  But  the 
rational  democrat  looks  forward  to  a  time  when  the  peo- 
ple will  understand  each  other  better;  when  they  will 
cease  to  distrust  one  another  ;  when  the  consciousness  of 
the  forces  which  unite  them  will  displace  the  conscious- 
ness of  forces  which  threaten  their  ruin  ;  when  they  will 
feel  themselves  to  be  not  the  victims  of  their  system,  but 


486  GROWTH  OF  THE   ENGLISH  CONSTITUTION     chap,  l 

the  masters  of  it.  If  such  a  condition  should  be  reached, 
there  would  be  no  longer  any  need  of  a  constitution  of 
checks  and  balances,  and  the  preventing  of  encroachments 
would  cease  to  be  the  chief  business  of  political  agents. 
After  such  an  attainment,  the  thing  of  chief  interest  in  the 
history  of  the  constitution  of  a  nation  would  be  not  politi- 
cal strife  and  contention,  but  those  qualities  of  character 
which  have  enabled  the  people  to  hold  together  in  spite  of 
continual  conflict. 


J 


APPENDIX 


MAGNA    CARTA 1 

JOHN,  BY  THE  GRACE  OF  GOD,  KiNG  OF  ENGLAND,  LORD  OF  IRE- 
LAND, Duke  of  Normandy  and  Aquitaine,  and  Earl  of 
Anjou  :  To  the  Archbishops,  Bishops,  Abbots,  Earls,  Barons,  Jus- 
ticiaries, Foresters,  Sheriffs,  Reves,  Ministers,  and  all  Bailiffs  and 
others,  his  faithful  subjects.  Greeting.  Know  ye  that  We,  in  the 
presence  of  God,  and  for  the  health  of  Our  soul,  and  the  souls  of 
Our  ancestors  and  heirs,  to  the  honour  of  God,  and  the  exaltation 
of  Holy  Church,  and  amendment  of  Our  kingdom,  by  the  advice  of 
Our  reverend  Fathers,  Stephen,  Archbishop  of  Canterbury,  Primate 
of  all  England,  and  Cardinal  of  the  Holy  Roman  Church;  Henry, 
Archbishop  of  Dublin  ;  William  of  London  ;  Peter  of  Winchester, 
Jocelin  of  Bath  and  Glastonbury,  Hugh  of  Lincoln,  Walter  of 
Worcester,  William  of  Coventry,  Benedict  of  Rochester,  Bishops ; 
and  Master  Pandulph,  the  Pope's  subdeacon  and  familiar ;  Brother 
Aymeric,  Master  of  the  Knights  of  the  Temple  in  England ;  and 
the  noble  persons,  William  Marshal,  Earl  of  Pembroke ;  William, 
Earl  of  Salisbury;  William,  Earl  of  Warren;  William,  Earl  of 
Arundel;  Alan  de  Galloway,  Constable  of  Scotland;  Warin  Fitz- 
Gerald,  Hubert  de  Burgh,  Seneschal  of  Poictou,  Peter  Fitz-Herbert, 
Hugo  de  Neville,  Matthew  Fitz-Herbert,  Thomas  Basset,  Alan 
Basset,  Philip  Daubeney,  Robert  de  Roppelay,  John  Marshal,  John 
Fitz-Hugh,  and  others,  our  liegemen,  have,  in  the  first  place,  granted 
to  God,  and  by  this  Our  present  Charter  confirmed  for  Us  and  Our 
heirs  forever  — 

1.  That  the  English  Church  shall  be  free  and  enjoy  all  her  rights 
in  their  integrity  and  her  liberties  untouched.     And  that  We  will 

1  Translated  by  William  Basevi  Sanders,  Assistant  Keeper  of  Her  Majesty's 
Records. 

487 


488  APPENDIX 

this  so  to  be  observed  appears  from  the  fact  that  We  of  Our  mere  and 
free  will,  before  the  outbreak  of  the  dissensions  between  Us  and  Our 
Barons,  granted,  confirmed,  and  procured  to  be  confirmed  by  Pope 
Innocent  III.,  the  freedom  of  elections  which  is  considered  most  im- 
portant and  necessary  to  the  English  Church,  which  Charter  We  will 
both  keep  Ourself  and  will  it  to  be  so  kept  by  Our  heirs  for  ever. 

2.  We  have  also  granted  to  all  the  free  men  of  Our  Kingdom,  for 
Us  and  Our  heirs  for  ever,  all  the  liberties  underwritten,  to  have  and 
to  hold  to  them  and  their  heirs  of  Us  and  Our  heirs.  If  any  of  Our 
Earls,  Barons,  or  others  who  hold  of  Us  in  chief  by  Knight's  service, 
shall  die,  and  at  the  time  of  his  death  his  heir  shall  be  of  full  age  and 
owe  a  relief,  he  shall  have  his  inheritance  by  ancient  relief ;  to  wit, 
the  heir  or  heirs  of  an  Earl  of  an  entire  Earl's  Barony,  £100;  the 
heir  or  heirs  of  a  Baron  of  an  entire  Barony,  £100;  the  heir  or  heirs 
of  a  Knight  of  an  entire  Knight's  fee,  100s.  at  the  most ;  and  he  that 
oweth  less  shall  give  less,  according  to  the  ancient  custom  of  fees. 

3.  If,  however,  the  heir  of  any  such  shall  be  under  age  and  in  ward, 
he  shall,  when  he  comes  of  age,  have  his  inheritance  without  relief 
or  fine. 

4.  The  guardian  of  the  land  of  any  such  heir  so  under  age  shall 
take  therefrom  reasonable  issues,  customs,  and  services  only,  and  that 
without  destruction  and  waste  of  men  or  property ;  and  if  We  shall 
have  committed  the  custody  of  any  such  land  to  the  Sheriff  or  any 
other  person  who  ought  to  be  answerable  to  us  for  the  issues  thereof, 
and  he  commit  destruction  or  waste  upon  the  ward-lands.  We  will 
take  an  emend  from  him,  and  the  land  shall  be  committed  to  two 
lawful  and  discreet  men  of  that  fee,  who  shall  be  answerable  for  the 
issues  to  Us  or  to  whomsoever  We  shall  have  assigned  them.  And  if 
We  shall  give  or  sell  the  wardship  of  any  such  land  to  any  one,  and 
he  commit  destruction  or  waste  upon  it,  he  shall  lose  the  wardship, 
which  shall  be  committed  to  two  lawful  and  discreet  men  of  that  fee, 
who  shall,  in  like  manner,  be  answerable  unto  Us  as  hath  been 
aforesaid. 

5.  But  the  guardian,  so  long  as  he  shall  have  the  custody  of  the 
land,  shall  keep  up  and  maintain  the  houses,  parks,  fish  ponds,  pools, 
mills,  and  other  things  pertaining  thereto,  out  of  the  issues  of  the 
same,  and  shall  restore  the  whole  to  the  heir  when  he  comes  of  age, 
stocked  with  ploughs  and  wainage  according  as  the  season  may  re- 
quire and  the  issues  of  the  land  can  reasonably  bear. 

6.  Heirs  shall  be  married  without  disparagement,  to  which  end  the 
marriage  shall  be  made  known  to  the  heir's  nearest  of  kin  before  it 
be  contracted. 


APPENDIX  489 

7.  A  widow,  after  the  death  of  her  husband,  shall  immediately  and 
without  difficulty  have  her  marriage  portion  and  inheritance,  nor  shall 
she  give  anything  for  her  marriage  portion,  dower,  or  inheritance 
which  her  husband  and  herself  held  on  the  day  of  his  death ;  and  she 
may  remain  in  her  husband's  house  for  forty  days  after  his  death, 
within  which  time  her  dower  shall  be  assigned  to  her. 

8.  No  widow  shall  be  distrained  to  marry  so  long  as  she  has  a  mind 
to  live  without  a  husband ;  provided,  however,  that  she  give  security 
that  she  will  not  marry  without  Our  assent  if  she  holds  of  Us,  or  that 
of  the  Lord  of  whom  she  holds,  if  she  hold  of  another. 

9.  Neither  We  nor  Our  bailiffs  shall  seize  any  land  or  rent  for  any 
debt  so  long  as  the  debtor's  chattels  are  sufficient  to  discharge  the 
same ;  nor  shall  the  debtor's  sureties  be  distrained  so  long  as  the  chief 
debtor  hath  sufficient  to  pay  the  debt,  and  if  he  fail  in  the  payment 
thereof,  not  having  wherewithal  to  discharge  it,  then  the  sureties 
shall  answer  it,  and,  if  they  will,  shall  hold  the  debtor's  lands  and 
rents  until  satisfaction  of  the  debt  which  they  have  paid  for  him  be 
made  them,  unless  the  chief  debtor  can  show  himself  to  be  quit  thereof 
against  them. 

10.  If  any  one  shall  have  borrowed  money  from  the  Jews,  more  or 
less,  and  die  before  the  debt  be  satisfied,  no  interest  shall  be  taken 
upon  such  debt  so  long  as  the  heir  be  under  age,  of  whomsoever  he 
may  hold ;  and  if  the  debt  shall  fall  into  Our  hands  We  will  only 
take  the  chattel  mentioned  in  the  Charter. 

11.  And  if  any  one  die  indebted  to  the  Jews  his  wife  shall  have 
her  dower  and  pay  nothing  of  that  debt ;  and  if  the  children  of  the 
said  deceased  be  left  under  age  they  shall  have  necessaries  provided 
for  them  according  to  the  condition  of  the  deceased,  and  the  debt 
shall  be  paid  out  of  the  residue,  saving  the  Lord's  service;  and  so 
shall  it  be  done  with  regard  to  debts  owed  to  other  persons  than 
Jews. 

12.  No   SCUTAGE   OR   AID   SHALL   BE   IMPOSED    IN    OuR    KINGDOM 

UNLESS  BY  COMMON  COUNCIL  THEREOF,  except  to  ransom  Our  person, 
make  Our  eldest  son  a  knight,  and  once  to  marry  Our  eldest  daughter, 
and  for  this  a  reasonable  aid  only  shall  be  paid.  So  shall  it  be  with 
regard  to  aids  from  the  City  of  London. 

13.  And  the  City  of  London  shall  have  all  her  ancient  liberties  and 
free  customs,  both  by  land  and  water.  Moreover  We  will  and  grant 
that  all  other  cities,  boroughs,  towns,  and  ports  shall  have  all  their 
liberties  and  free  customs. 

14.  And  for  obtaining  the  common  council  of  the  kingdom 
concerning  the  assessment  of  aids  other  than  in  the  threb 


490  APPENDIX 

CASES  AFORESAID  OR  OF  SCUTAGE,  We  WILL  CAUSE  TO  BE  SUM- 
MONED, SEVERALLY   BY    OUR    LETTERS,    THE    ArCHBISHOPS,   BiSHOPS, 

Abbots,  Earls,  and  great  Barons  ;  and  in  addition  We  will 
also  cause  to  be  summoned,  generally,  by  our  sheriffs  and 
bailiffs,  all  those  who  hold  of  us  in  chief,  to  meet  at  a 
certain  day,  to  wit,  at  the  end  of  forty  days,  at  least,  and 

AT  A  CERTAIN  PLACE  ;  AND  IN  ALL  LETTERS  OF  SUCH  SUMMONS  We 
WILL  EXPLAIN  THE  CAUSE  THEREOF,  AND  THE  SUMMONS  BEING  THUS 
MADE  THE  BUSINESS  SHALL  PROCEED  ON  THE  DAY  APPOINTED,  AC- 
CORDING TO  THE  ADVICE  OF  THOSE  WHO  SHALL  BE  PRESENT,  NOT- 
WITHSTANDING THAT  THE  WHOLE  NUMBER  OF  PERSONS  SUMMONED 
SHALL  NOT  HAVE  COME. 

15.  We  will  not,  for  the  future,  grant  permission  to  any  man  to 
levy  an  aid  upon  his  freemen,  except  to  ransom  his  person,  make  his 
eldest  son  a  knight,  and  once  to  marry  his  eldest  daughter,  for  which 
a  reasonable  aid  only  shall  be  levied. 

16.  No  man  shall  be  distrained  to  perform  more  service  for  a 
knight's  fee  or  other  free  tenement  than  is  due  therefrom. 

17.  Common  pleas  shall  not  follow  Our  Court,  but  be  holden  in 
some  certain  place. 

18.  Recognisances  of  Novel  Disseisin,  Mort  d' Ancestor,  and  Dar- 
rein Presentment  shall  be  taken  in  their  proper  counties  only,  and  in 
this  wise :  —  We  Ourself ,  or,  if  We  be  absent  from  the  realm.  Our 
Chief  Justiciary,  shall  send  two  justiciaries  through  each  county  four 
times  a  year,  who,  together  with  four  knights  elected  out  of  each 
shire  by  the  people  thereof,  shall  hold  the  said  assizes  in  the  shire 
and  on  the  day  and  in  the  place  appointed. 

19.  And  if  the  said  assizes  cannot  be  held  on  the  day  appointed,  so 
many  of  the  knights  and  freeholders  as  shall  have  been  present  thereat 
on  that  day  shall  remain  as  will  be  sufficient  for  the  administration  of 
justice,  according  as  the  business  to  be  done  be  greater  or  less. 

20.  A  free  man  shall  only  be  amerced  for  a  small  fault  according 
to  the  measure  thereof,  and  for  a  great  crime  according  to  its  magni- 
tude, in  proportion  to  his  degree  ;  and  in  like  manner  a  merchant  in 
proportion  to  his  merchandise,  and  a  villein  in  proportion  to  his  wain- 
age  if  he  should  fall  under  Our  mercy ;  and  none  of  the  said  amerce- 
ments shall  be  imposed  unless  by  the  oath  of  honest  men  of  the  venue. 

21.  Earls  and  Barons  shall  only  be  amerced  by  their  peers  in  pro- 
portion to  the  measure  of  the  offence.  ■ 

22.  No  clerk  shall  be  amerced  for  his  lay  tenement,  except  aftep 
the  manner  of  the  other  persons  aforesaid,  and  not  according  to  the 
value  of  his  ecclesiastical  benefice. 


I 


APPENDIX  401 

23.  Neither  shall  any  vill  or  person  be  distrained  to  make  bridges 
over  rivers,  but  they  who  are  bound  to  do  so  by  ancient  custom  and 
law. 

24.  No  sheriff,  constable,  coroners,  or  other  of  Our  bailiffs  shall 
hold  pleas  of  Our  Crown. 

25.  All  counties,  hundreds,  tithings,  and  wapentakes  shall  stand 
at  the  old  farms,  without  any  increased  rent,  except  Our  demesne 
manors. 

26.  If  any  one  die  holding  a  lay  fee  of  Us,  and  the  sheriff  or  Our 
bailiff  show  Our  letters  patent  of  summons  touching  the  debt  due  to 
Us  from  the  deceased,  it  shall  be  lawful  to  such  sheriff  or  bailiff  to 
attach  and  register  the  chattels  of  the  deceased  found  in  the  lay  fee 
to  the  value  of  that  debt,  by  view  of  lawful  men,  so  that  nothing  be 
removed  therefrom  until  Our  whole  debt  be  paid ;  and  the  residue 
shall  be  given  up  to  the  executors  to  carry  out  the  will  of  the  deceased. 
And  if  there  be  nothing  due  from  him  to  Us,  all  his  chattels  shall 
remain  to  the  deceased,  saving  to  his  wife  and  children  their  reasonar 
ble  shares. 

27.  If  any  free  man  shall  die  intestate  his  chattels  shall  be  distrib- 
uted by  the  hands  of  his  nearest  kinsfolk  and  friends  by  view  of  the 
Church,  saving  to  every  one  the  debts  due  to  him  from  the  deceased. 

28.  No  constable  or  other  Our  bailiff  shall  take  corn  or  other  chat- 
tels of  any  man  without  immediate  payment  for  the  same,  unless  he 
hath  a  voluntary  respite  of  payment  from  the  seller. 

29.  No  constable  shall  distrain  any  knight  to  give  money  for  castle- 
guard,  if  he  will  perform  it  either  in  his  proper  person  or  by  some 
other  fit  man,  if  he  himself  be  prevented  from  so  doing  by  reasona- 
ble cause ;  and,  if  We  lead  or  send  him  into  the  army,  he  shall  be 
quit  of  castle-guard  for  the  time  he  shall  remain  in  the  army  by  Our 
command. 

30.  No  sheriff  or  other  Our  bailiff,  or  any  other  man,  shall  take  the 
horses  or  carts  of  any  free  man  for  carriage  except  with  his  consent. 

31.  Neither  shall  We  or  Our  bailiffs  take  another  man's  timber  for 
Our  castles  or  other  uses,  unless  with  the  consent  of  the  owner  thereof. 

32.  We  will  only  retain  the  lands  of  persons  convicted  of  felony 
for  a  year  and  a  day,  after  which  they  shall  be  restored  to  the  Lords 
of  the  fees. 

33.  From  henceforth  all  weirs  shall  be  entirely  removed  from  the 
Thames  and  Medway,  and  throughout  England,  except  upon  the  sea 
coast. 

34.  The  writ  called  "  Praecipe  "  shall  not  for  the  future  issue  to  any 
one  of  any  tenement  whereby  a  freeman  may  lose  his  court. 


402  APPENDIX 

35.  There  shall  be  one  measure  of  wine  throughout  Our  kingdom, 
and  one  of  ale,  and  one  measure  of  corn,  to  wit,  the  London  quarter, 
and  one  breadth  of  dyed  cloth,  russetts,  and  haberjects,  to  wit,  two 
ells  within  the  lists.  And  as  with  measures  so  it  shall  be  also  with 
weights. 

36.  From  henceforth  nothing  shall  be  given  for  a  writ  of  inquisi- 
tion upon  life  or  limbs,  but  it  shall  be  granted  gratis,  and  shall  not  be 
denied. 

37.  If  any  one  hold  of  Us  by  fee-farm,  socage  or  burgage,  and 
hold  land  of  another  by  knight's  service,  We  will  not  have  the  ward- 
ship of  his  heir,  or  the  land  which  belongs  to  another  man's  fee,  by 
reason  of  that  fee-farm,  socage  or  burgage ;  nor  will  We  have  the 
wardship  of  such  fee-farm,  socage,  or  burgage,  unless  such  fee-farm 
owe  knight's  service.  We  will  not  have  the  wardship  of  any  man's 
heir,  or  the  land  which  he  holds  of  another  by  knight's  service,  by 
reason  of  any  petty  serjeanty  which  he  holds  of  Us  by  service  of  ren- 
dering Us  daggers,  arrows,  or  the  like. 

38.  No  bailiff  shall  for  the  future  put  any  man  to  trial  upon  his 
simple  accusation  without  producing  credible  witnesses  to  the  truth 
thereof. 

39.  No  FREEMAN  SHALL  BE  TAKEN,  IMPRISONED,  DISSEISED,  OUT- 
LAWED, BANISHED,  OR  IN  ANY  WAY  DESTROYED,  NOR  WILL  We  PRO- 
CEED AGAINST  OR  PROSECUTE  HIM  EXCEPT  BY  LAWFUL  JUDGMENT  OF 
HIS  PEERS  OR  THE  LAW  OF  THE  LAND. 

40.  To  NO  ONE  WILL  We  SELL,  TO  NONE  WILL  We  DENY  OR 
DEFER,    RIGHT    OR    JUSTICE. 

41.  All  merchants  shall  have  safe  conduct  to  go  and  come  out  of 
and  into  England,  and  to  stay  in  and  travel  through  England  by  land 
and  water  for  purchase  or  sale,  without  maltolt,  by  ancient  and  just 
customs,  except  in  time  of  war,  or  if  they  belong  to  a  country  at  war 
with  Us.  And  if  any  such  be  found  in  Our  dominion  at  the  outbreak 
of  war,  they  shall  be  attached,  without  injury  to  their  persons  or 
goods,  until  it  be  known  to  Us  or  Our  Chief  Justiciary,  after  what 
sort  Our  merchants  are  treated  who  shall  be  found  to  be  at  that  time 
in  the  country  at  war  with  Us,  and  if  they  be  safe  there  then  these 
shall  be  so  also  with  Us. 

42.  It  shall  be  lawful  in  future,  unless  in  time  of  war,  for  any  one 
to  leave  and  return  to  Our  kingdom  safely  and  securely  by  land  and 
water,  saving  his  fealty  to  Us,  for  any  short  period,  for  the  common 
benefit  of  the  realm,  except  prisoners  and  outlaws  according  to  the 
law  of  the  land,  people  of  the  country  at  war  with  Us,  and  merchants 
who  shall  be  dealt  with  as  is  aforesaid. 


i 


APPENDIX  403 

43.  If  any  one  die  holding  of  any  escheat,  as  of  the  honour  of  Wal- 
lingford,  Nottingham,  Boulogne,  Lancaster,  or  other  escheats  which  are 
in  Our  hands  and  are  baronies,  his  heir  shall  not  give  any  relief  or  do 
any  service  to  Us  other  than  he  would  owe  to  the  baron  if  such  barony 
should  have  been  in  the  hands  of  a  baron,  and  We  will  hold  it  in  the 
same  manner  in  which  the  baron  held  it. 

44.  Persons  dwelling  without  the  forest  shall  not  for  the  future 
come  before  Our  justiciaries  of  the  forest  by  common  summons,  unless 
they  be  impleaded  or  are  bail  for  any  person  or  persons  attached  for 
breach  of  forest  laws. 

45.  We  will  only  appoint  such  men  to  be  justiciaries,  constables, 
sheriffs,  or  bailiffs  as  know  the  law  of  the  land  and  will  keep  it  well. 

46.  All  barons,  founders  of  abbies  by  charters  of  English  Kings  or 
ancient  tenure,  shall  have  the  custody  of  the  same  during  vacancy  as 
is  due. 

47.  All  forests  which  have  been  afforested  in  Our  time  shall  be 
forthwith  disafforested,  and  so  shall  it  be  done  with  regard  to  rivers 
which  have  been  placed  in  fence  in  Our  time. 

48.  All  evil  customs  concerning  forests  and  warrens,  foresters, 
warreners,  sheriffs,  and  their  officers,  rivers  and  their  conservators, 
shall  be  immediately  inquired  into  in  each  county  by  twelve  sworn 
knights  of  such  shire,  who  must  be  elected  by  honest  men  thereof, 
and  within  forty  days  after  making  the  inquisition  they  shall  be  alto- 
gether and  irrevocably  abolished,  the  matter  having  been  previously 
brought  to  Our  knowledge  or  that  of  Our  Chief  Justiciary  if  We  Our- 
self  shall  not  be  in  England. 

49.  We  will  immediately  give  up  all  hostages  and  charters  deliv- 
ered to  Us  by  the  English  for  the  security  of  peace  and  the  perform- 
ance of  loyal  service. 

50.  We  will  entirely  remove  from  their  bailiwicks  the  kinsmen  of 
Gerard  de  Atyes,  so  that  henceforth  they  shall  hold  no  bailiwick  in 
England,  Engelard  de  Cygoyney,  Andrew,  Peter,  and  Gyon  de  Can- 
celles,  Gyon  de  Cygoyney,  Ralph  de  Martiny  and  his  brothers,  Philip 
Marc  [el]  and  his  brothers,  and  Ralph  his  grandson,  and  all  their 
followers. 

51.  Directly  after  the  restoration  of  peace  We  will  dismiss  out  of 
Our  kingdom  all  foreign  soldiers,  bowmen,  serving  men,  and  merce- 
naries, who  come  with  horses  and  arms  to  the  nuisance  thereof. 

52.  If  any  one  shall  have  been  disseised  or  deprived  by  Us,  without 
the  legal  judgment  of  his  peers,  of  lands,  castles,  liberties,  or  rights, 
AVe  will  instantly  restore  the  same,  and  if  any  dispute  shall  arise 
thereupon,  the  matter  shall  be  decided  by  judgment  of  the  twenty- 


I 


494  APPENDIX 

five  barons  mentioned  below  for  the  security  of  peace.  With  regard 
to  all  those  things,  however,  whereof  any  person  shall  have  been  dis- 
seised or  deprived,  without  the  legal  judgment  of  his  peers,  by  King 
Henry  Our  Father,  or  Our  Brother  King  Richard,  and  which  remain 
in  Our  hands  or  are  held  by  others  under  Our  warranty.  We  will  have 
respite  thereof  till  the  term  commonly  allowed  to  the  crusaders,  except 
as  to  those  matters  on  which  a  plea  shall  have  arisen,  or  an  inquisi- 
tion have  been  taken  by  Our  command  prior  to  Our  assumption  of  the 
Cross,  and  immediately  after  Our  return  from  Our  pilgrimage,  or  if 
by  chance  We  should  remain  behind  from  it  We  will  do  full  justice 
therein. 

53.  We  will  likewise  have  the  same  respite  and  in  like  manner 
shall  justice  be  done  with  respect  to  forests  to  be  disafforested  or  let 
alone,  which  Henry  Our  Father  or  Richard  Our  Brother  afforested, 
and  to  wardships  of  lands  belonging  to  another's  fee,  which  We  have 
hitherto  held  by  reason  of  the  fee  which  some  person  has  held  of  Us 
by  knight's  service,  and  to  abbies  founded  in  another's  fee  than  Our 
own,  whereto  the  lord  of  that  fee  asserts  his  right.  And  when  We 
return  from  Our  pilgrimage,  or  if  We  remain  behind  therefrom.  We 
will  forthwith  do  full  justice  to  the  complainants  in  these  matters. 

54.  No  one  shall  be  taken  or  imprisoned  upon  a  woman's  appeal 
for  the  death  of  any  other  person  than  her  husband. 

55.  All  fines  unjustly  and  unlawfully  made  with  Us,  and  all  amerce- 
ments levied  unjustly  and  against  the  law  of  the  land,  shall  be  entirely 
condoned  or  the  matter  settled  by  judgment  of  the  twenty-five  barons 
of  whom  mention  is  made  below,  for  the  security  of  peace,  or  the 
majority  of  them,  together  with  the  aforesaid  Stephen,  Archbishop  of 
Canterbury,  if  he  himself  can  be  present,  and  any  others  whom  he 
may  wish  to  summon  for  the  purpose,  and  if  he  cannot  be  present  the 
business  shall  nevertheless  proceed  without  him.  Provided  that  if 
any  one  or  more  of  the  said  twenty-five  barons  be  interested  in  a 
plaint  of  this  kind,  he  or  they  shall  be  set  aside,  as  to  this  particular 
judgment,  and  another  or  others  elected  and  sworn  by  the  rest  of  the 
said  barons  for  this  purpose  only,  be  substituted  in  his  or  their  stead. 

56.  If  We  have  disseised  or  deprived  the  Welsh  of  lands,  liberties 
or  other  things,  without  legal  judgment  of  their  peers,  in  England  or 
Wales,  they  shall  instantly  be  restored  to  them,  and  if  a  dispute  shall 
arise  thereon  the  question  shall  be  determined  on  the  Marches  by 
judgment  of  their  peers  according  to  the  law  of  England  with  regard 
to  English  tenements,  the  law  of  Wales  respecting  Welsh  tenements, 
and  the  law  of  the  Marches  as  to  tenements  in  the  Marches.  The 
same  shall  the  Welsh  do  to  Us  and  Ours. 


APPENDIX  496 

57.  But  with  regard  to  all  those  things  whereof  any  Welshman' 
shall  have  been  disseised  or  deprived,  without  legal  judgment  of  his 
peers,  by  King  Henry  Our  Father  or  Our  Brother  King  Richard,  and 
which  We  hold  in  Our  hands  or  others  hold  under  Our  warranty,  We 
will  have  respite  thereof  till  the  term  commonly  allowed  to  the  cru- 
saders, except  as  to  those  matters  whereon  a  plea  shall  have  arisen  or 
an  inquisition  have  been  taken  by  Our  command  prior  to  Our  assump- 
tion of  the  Cross,  and  immediately  after  Our  return  from  Our  pilgrim- 
age, or  if  by  chance  We  should  remain  behind  from  it  We  will  do  full 
justice  therein,  according  to  the  laws  of  the  Welsh  and  the  parts 
aforesaid. 

58.  We  will  immediately  give  up  the  son  of  Lewellyn  and  all  the 
Welsh  hostages,  and  the  charters  which  were  delivered  to  Us  for  the 
security  of  peace. 

59.  We  will  do  the  same  with  regard  to  Alexander,  King  of  the 
Scots,  in  the  matter  of  giving  up  his  sisters  and  hostages,  and  of  his 
liberties  and  rights,  as  We  would  with  regard  to  Our  other  barons  of 
England,  unless  it  should  appear  by  the  charters  which  We  hold 
of  William  his  father,  late  King  of  the  Scots,  that  it  ought  to  be 
otherwise,  and  this  shall  be  done  by  judgment  of  his  peers  in  Our 
Court. 

60.  All  which  customs  and  liberties  aforesaid,  which  We  have 
granted  to  be  enjoyed,  as  far  as  in  Us  lies,  by  Our  people  throughout 
Our  kingdom,  let  all  Our  subjects,  clerks  and  laymen,  observe,  as  far 
as  in  them  lies,  towards  their  dependants. 

61.  And  whereas  We,  for  the  honour  of  God  and  the  amendment 
of  Our  realm,  and  in  order  the  better  to  allay  the  discord  arisen 
between  Us  and  Our  barons,  have  granted  all  these  things  aforesaid. 
We,  willing  that  they  be  fot  ever  enjoyed  wholly  and  in  lasting 
strength,  do  give  and  grant  to  Our  subjects  the  following  security,  to 
wit,  that  the  barons  shall  elect  any  twenty-five  barons  of  the  kingdom 
at  will,  who  shall,  with  their  utmost  power,  keep,  hold,  and  cause  to 
be  holden  the  peace  and  liberties  which  We  have  granted  unto  them, 
and  by  this  Our  present  Charter  confirmed,  so  that,  for  instance,  if 
We,  Our  Justiciary,  bailiifs,  or  any  of  Our  ministers,  offend  in  any 
respect  against  any  man,  or  shall  transgress  any  of  these  articles  of 
peace  or  security,  and  the  offence  be  brought  before  four  of  the  said 
five  and  tw^enty  barons,  those  four  barons  shall  come  before  Us,  or 
Our  Chief  Justiciary  if  We  are  out  of  the  kingdom,  declaring  the  of- 
fence, and  shall  demand  speedy  amends  for  the  same.  And  if  We  or 
in  case  of  Our  being  out  of  the  kingdom,  Our  Chief  Justiciary,  fail 
to  afford  redress  within  the  space  of  forty  days  from  the  time  the  case 


496  APPENDIX 

was  brought  before  Us  or  Our  Chief  Justiciary,  the  aforesaid  four 
barons  shall  refer  the  matter  to  the  rest  of  the  twenty-five  barons, 
who,  together  with  the  commonalty  of  the  whole  county,  shall  distrain 
and  distress  Us  to  the  utmost  of  their  power,  to  wit,  by  capture  of  Our 
castles,  lands,  possessions,  and  all  other  possible  means,  until  compen- 
sation be  made  according  to  their  decision,  saving  Our  person  and 
that  of  Our  Queen  and  children,  and  as  soon  as  that  be  done  they 
shall  return  to  their  former  allegiance.  Any  one  whatsoever  in  the 
kingdom  may  take  oath  that,  for  the  accomplishment  of  all  the  afore- 
said matters,  he  will  obey  the  orders  of  the  said  twenty-five  barons, 
and  distress  Us  to  the  utmost  of  his  power ;  and  We  give  public  and 
free  leave  to  every  one  wishing  to  take  such  oath  to  do  so,  and  to  none 
will  We  deny  the  same. 

62.  Moreover  We  will  compel  all  such  of  Our  subjects  who  shall 
decline  to  swear  to,  and  together  with  the  said  twenty-five  barons  to 
distrain  and  distress  Us  of  their  own  free  will  and  accord,  to  do  so  by 
Our  command  as  is  aforesaid.  And  if  any  one  of  the  twenty-five 
barons  shall  die  or  leave  the  country,  or  be  in  any  way  hindered  from 
executing  the  said  office,  the  rest  of  the  said  twenty-five  barons  shall 
choose  another  in  his  stead,  at  their  discretion,  who  shall  be  sworn  in 
like  manner  as  the  others.  And  in  all  cases  which  are  referred  to  the 
said  twenty-five  barons  to  execute,  and  in  which  a  difference  shall 
arise  among  them,  supposing  them  all  to  be  present,  or  that  all  who 
have  been  summoned  are  unwilling  or  unable  to  appear,  the  verdict 
of  the  majority  shall  be  considered  as  firm  and  binding  as  if  the  whole 
number  should  have  been  of  one  mind.  And  the  aforesaid  twenty- 
five  shall  swear  to  keep  faithfully  all  the  aforesaid  articles,  and,  to  the 
best  of  their  power,  cause  them  to  be  kept  by  others.  And  We  will 
not  procure,  either  by  Ourself  or  any  other,  anything  from  any  man 
whereby  any  of  the  said  concessions  or  liberties  may  be  revoked  or 
abated ;  and  if  any  such  procurement  be  made  let  it  be  null  and  void ; 
it  shall  never  be  made  use  of  either  by  Us  or  any  other.  We  have 
also  wholly  remitted  and  condoned  all  ill-will,  wrath,  and  malice  which 
have  arisen  between  Us  and  Our  subjects,  clerks  and  laymen,  during 
the  disputes,  to  and  with  all  men ;  and  We  have  moreover  fully  re- 
mitted, and  as  far  as  in  Us  lies,  wholly  condoned  to  and  with  all  clerks 
and  laymen  all  trespasses  made  in  consequence  of  the  said  disputes 
from  Easter  in  the  sixteenth  year  of  Our  reign  till  the  restoration  of 
peace ;  and,  over  and  above  this,  We  have  caused  to  be  made  in  their 
behalf  letters  patent  by  testimony  of  Stephen,  Archbishop  of  Canter- 
bury, Henry,  Archbishop  of  Dublin,  the  Bishops  above-mentioned, 
and  Master  Pandulph,  upon  the  security  and  concession  aforesaid. 


APPENDIX  497 

63.  Wherefore  We  will,  and  firmly  charge,  that  the  English  Church 
be  free,  and  that  all  men  in  Our  Kingdom  have  and  hold  all  the  afore- 
said liberties,  rights,  and  concessions,  well  and  peaceably,  freely, 
quietly,  fully,  and  wholly,  to  them  and  their  heirs,  of  Us  and  Our 
heirs,  in  all  things  and  places  for  ever,  as  is  aforesaid.  It  is  moreover 
sworn,  as  well  on  Our  part  as  on  the  part  of  the  Barons,  that  all  these 
matters  aforesaid  shall  be  kept  in  good  faith  and  without  malengine. 
Witness  the  above-mentioned  Prelates  and  Nobles  and  many  others. 
Given  by  Our  hand  in  the  meadow  which  is  called  Runny mede 
between  Windsor  and  Staines,  on  the  Fifteenth  day  of  June  in  the 
Seventeenth  year  of  Our  reign. 


The  following  documents  are  taken  from  the  Appendix  to  Stubbs' 
Select  Charters. 

A.D.  1628.    Petition  of  Right.  c     , 

3  Car.  I.  c.  1. 

The  Petition  exhibited  to  his  Majesty  by  the  Lords  Spiritual  and 
Temporal,  and  Commons,  in  this  present  Parliament  assembled, 
concerning  divers  Rights  and  Liberties  of  the  Subjects,  with  the 
King's  Majesty's  royal  answer  thereunto  in  full  Parliament. 

To  the  King's  Most  Excellent  Majesty, 

Humbly  show  unto  our  Sovereign  Lord  the  King,  the  Lords 
Spiritual  and  Temporal,  and  Commons  in  Parliament  assembled, 
that  whereas  it  is  declared  and  enacted  by  a  statute  made  in  the 
time  of  the  reign  of  King  Edward  I,  commonly  called  Statutum  de 
Tallagio  non  Concedendo,  that  no  tallage  or  aid  shall  be  laid  or  levied 
by  the  king  or  his  heirs  in  this  realm,  without  the  good  will  and 
assent  of  the  archbishops,,  bishops,  earls,  barons,  knights,  burgesses, 
and  other  the  freemen  of  the  commonalty  of  this  realm;  and  by 
authority  of  parliament  h olden  in  the  five-and-twentieth  year  of  the 
veign  of  King  Edward  III,  it  is  declared  and  enacted,  that  from 
thenceforth  no  person  should  be  compelled  to  make  any  loans  to  the 
Icing  against  his  will,  because  such  loans  were  against  reason  and  the 
franchise  of  the  land;  and  by  other  laws  of  this  realm  it  is  provided, 
that  none  should  be  charged  by  any  charge  or  imposition  called  a 
benevolence,  nor  by  such  like  charge ;  by  which  statutes  before  men- 
2k 


498  APPENDIX 

tioned,  and  other  the  good  laws  and  statutes  of  this  realm,  your 
subjects  have  inherited  this  freedom,  that  they  should  not  be  com- 
pelled to  contribute  to  any  tax,  tallage,  aid,  or  other  like  charge  not 
set  by  common  consent,  in  parliament. 

II.  Yet  nevertheless  of  late  divers  commissions  directed  to  sundry 
commissioners  in  several  counties,  with  instructions,  have  issued ;  by 
means  whereof  your  people  have  been  in  divers  places  assembled,  and 
required  to  lend  certain  sums  of  money  unto  your  Majesty,  and  many 
of  them,  upon  their  refusal  so  to  do,  have  had  an  oath  administered 
unto  them  not  warrantable  by  the  laws  or  statutes  of  this  realm,  and 
have  been  constrained  to  become  bound  and  make  appearance  and 
give  utterance  before  your  Privy  Council  and  in  other  places,  and 
others  of  them  have  been  therefore  imprisoned,  confined,  and  sundry 
other  ways  molested  and  disquieted ;  and  divers  other  charges  have 
been  laid  and  levied  upon  your  people  in  several  counties  by  lord 
lieutenants,  deputy  lieutenants,  commissioners  for  musters,  justices 
of  peace  and  others,  by  command  or  direction  from  your  Majesty,  or 
your  Privy  Council,  against  the  laws  and  free  customs  of  the  realm. 

III.  And  whereas  also  by  the  statute  called  '  The  Great  Charter  of 
the  liberties  of  England,'  it  is  declared  and  enacted,  that  no  freeman 
may  be  taken  or  imprisoned  or  be  disseised  of  his  freehold  or  liberties, 
or  his  free  customs,  or  be  outlawed  or  exiled,  or  in  any  manner 
destroyed,  but  by  the  lawful  judgment  of  his  peers,  or  by  the  law  of 
the  land. 

IV.  And  in  the  eight-and-twentieth  year  of  the  reign  of  King 
Edward  III,  it  was  declared  and  enacted  by  authority  of  parliament, 
that  no  man,  of  what  estate  or  condition  that  he  be,  should  be  put 
out  of  his  land  or  tenements,  nor  taken,  nor  imprisoned,  nor  dis- 
herited, nor  put  to  death  without  being  brought  to  answer  by  due 
process  of  law. 

V.  Nevertheless,  against  the  tenor  of  the  said  statutes,  and  other 
the  good  laws  and  statutes  of  your  realm  to  that  end  provided,  divers 
of  your  subjects  have  of  late  been  imprisoned  without  any  cause 
showed;  and  when  for  their  deliverance  they  were  brought  before 
your  justices  by  your  Majesty's  writs  of  Habeas  Corpus,  there  to 
undergo  and  receive  as  the  court  should  order,  and  their  keepers 
commanded  to  certify  the  causes  of  their  detainer,  no  cause  was 
certified,  but  that  they  were  detained  by  your  Majesty's  special 
command,  signified  by  the  lords  of  your  Privy  Council,  and  yet  were 
returned  back  to  several  prisons,  without  being  charged  with  any- 
thing to  which  they  might  make  answer  according  to  the  law. 

VI.  And  whereas  of  late  great  companies  of  soldiers  and  mariners 


APPENDIX  499 

have  been  dispersed  into  divers  counties  of  the  realm,  and  the  inhabi- 
tants against  their  wills  have  been  compelled  to  receive  them  into 
their  houses,  and  there  to  suffer  them  to  sojourn  against  the  laws  and 
customs  of  this  realm,  and  to  the  great  grievance  and  vexation  of  the 
people. 

VII.  And  whereas  also  by  authority  of  parliament,  in  the  five-and- 
twentieth  year  of  the  reign  of  King  Edward  III,  it  is  declared  aud 
enacted,  that  no  man  shall  be  forejudged  of  life  or  limb  against  the 
form  of  the  Great  Charter  and  the  law  of  the  land ;  and  by  the  said 
Great  Charter  and  other  the  laws  and  statutes  of  this  your  realm,  no 
man  ought  to  be  adjudged  to  death  but  by  the  laws  established  in 
this  your  realm,  either  by  the  customs  of  the  same  realm,  or  by  acts 
of  parliament :  and  whereas  no  offender  of  what  kind  soever  is  ex- 
empted from  the  proceedings  to  be  used,  and  punishments  to  be 
inflicted  by  the  laws  and  statutes  of  this  your  realm ;  nevertheless  of 
late  time  divers  commissions  under  your  Majesty's  great  seal  have 
issued  forth,  by  which  certain  persons  have  been  assigned  and  ap- 
pointed commissioners  with  power  and  authority  to  proceed  within 
the  land,  according  to  the  justice  of  martial  law,  against  such  soldiers 
or  mariners,  or  other  dissolute  persons  joining  with  them,  as  should 
commit  any  murder,  robbery,  felony,  mutiny,  or  other  outrage  or 
misdemeanour  whatsoever,  and  by  such  summary  course  and  order 
as  is  agreeable  to  martial  law,  and  as  is  used  in  armies  in  time  of 
war,  to  proceed  to  the  trial  and  condemnation  of  such  offenders,  and 
them  to  cause  to  be  executed  and  put  to  death  according  to  the  law 
martial. 

VIII.  By  pretext  whereof  some  of  your  Majesty's  subjects  have 
been  by  some  of  the  said  commissioners  put  to  death,  when  and 
where,  if  by  the  laws  and  statutes  of  the  land  they  had  deserved 
death,  by  the  same  laws  and  statutes  also  they  might,  and  by  no  other 
ought  to  have  been  judged  and  executed. 

IX.  And  also  sundry  grievous  offenders,  by  colour  thereof  claiming 
an  exemption,  have  escaped  the  punishments  due  to  them  by  the  laws 
and  statutes  of  this  your  realm,  by  reason  that  divers  of  your  officers 
and  ministers  of  justice  have  unjustly  refused  or  forborne  to  proceed 
against  such  offenders  according  to  the  same  laws  and  statutes,  upon 
pretence  that  the  said  offenders  were  punishable  only  by  martial  law, 
and  by  authority  of  such  commissions  as  aforesaid ;  which  commis- 
sions, and  all  other  of  like  nature,  are  wholly  and  directly  contrary  to 
the  said  laws  and  statutes  of  this  your  realm. 

X.  They  do  therefore  humbly  pray  your  most  excellent  Majesty, 
that  no  man  hereafter  be  compelled  to  make  or  yield  any  gift,  loan, 


500 


APPENDIX 


benevolence,  tax,  or  such  like  charge,  without  common  consent  by  act 
of  parliament ;  and  that  none  be  called  to  make  answer,  or  take  such 
oath,  or  to  give  attendance,  or  be  confined,  or  otherwise  molested  or 
disquieted  concerning  the  same  or  for  refusal  thereof ;  and  that  no 
freeman,  in  any  such  manner  as  is  before  mentioned,  be  imprisoned 
or  detained ;  and  that  your  Majesty  would  be  pleased  to  remove  the 
said  soldiers  and  mariners,  and  that  your  people  may  not  be  so  bur- 
dened in  time  to  come;  and  that  the  aforesaid  commissions,  for 
proceeding  by  martial  law,  maybe  revoked  and  annulled;  and  that 
hereafter  no  commissions  of  like  nature  may  issue  forth  to  any 
person  or  persons  whatsoever  to  be  executed  as  aforesaid,  lest  by 
colour  of  them  any  of  your  Majesty's  subjects  be  destroyed  or  put  to 
death  contrary  to  the  laws  and  franchise  of  the  land. 

XT.  All  which  they  most  humbly  pray  of  your  most  excellent 
Majesty  as  their  rights  and  liberties,  according  to  the  laws  and 
statutes  of  this  realm ;  and  that  your  Majesty  would  also  vouchsafe 
to  declare,  that  the  awards,  doings,  and  proceedings,  to  the  prejudice 
of  your  people  in  any  of  the  premises,  shall  not  be  drawn  hereafter 
into  consequence  or  example ;  and  that  your  Majesty  would  be  also 
graciously  pleased,  for  the  further  comfort  and  safety  of  your  people, 
to  declare  your  royal  will  and  pleasure,  that  in  the  things  aforesaid 
all  your  officers  and  ministers  shall  serve  you  according  to  the  laws 
and  statutes  of  this  realm,  as  they  tender  the  honour  of  your  Majesty, 
and  the  prosperity  of  this  kingdom. 

Qua  quidem  petitione  lecta  et  plenius  intellecia  per  dictum  dominum 
regem  taliter  est  responsum  in  plena  parliamento,  viz.  Soit  droit  fait 
come  est  desire.  —  (Statutes  of  the  Realm,  v.  24,  25.) 


A.D.  1679.    The  Habeas  Corpus  Act. 


31  Car.  II.  c.  2. 


An  Act  for  the  better  securing  the  Liberty  of  the  Subject,  and  for 
Prevention  of  Imprisonments  beyond  the  Seas. 

Whereas  great  delays  have  been  used  by  sheriffs,  gaolers,  and  other 
officers,  to  whose  custody  any  of  the  king's  subjects  have  been  com- 
mitted for  criminal  or  supposed  criminal  matters,  in  making  returns 
of  writs  of  Habeas  Corpus  to  them  directed,  by  standing  out  an  Alias 
and  Pluries  Habeas  Corpus,  and  sometimes  more,  and  by  other  shifts 
to  avoid  their  yielding  obedience  to  such  writs,  contrary  to  their  duty 


APPENDIX  501 

and  the  known  laws  of  the  land,  whereby  many  of  the  king's  subjects 
have  been  and  hereafter  may  be  long  detained  in  prison,  in  such  cases 
where  by  law  they  are  bailable,  to  their  great  charges  and  vexation : 

II.  For  the  prevention  whereof,  and  the  more  speedy  relief  of  all 
persons  imprisoned  for  any  such  criminal  or  supposed  criminal  mat- 
ters ;  be  it  enacted  by  the  King's  most  excellent  Majesty,  by  and  with 
the  advice  and  consent  of  the  Lords  Spiritual  and  Temporal,  and 
Commons,  in  this  present  Parliament  assembled,  and  by  the  authority 
thereof,  that  whensoever  any  person  or  persons  shall  bring  any  Habeas 
Corpus  directed  unto  any  sheriff  or  sheriffs,  gaoler,  minister,  or  other 
person  whatsoever,  for  any  person  in  his  or  their  custody,  and  the 
said  writ  shall  be  served  upon  the  said  officer,  or  left  at  the  gaol  or 
prison  with  any  of  the  under-officers,  under-keepers  or  deputy  of  the 
said  officers  or  keepers,  that  the  said  officer  or  officers,  his  or  their 
under-officers,  under-keepers  or  deputies,  shall  within  three  days  after 
the  service  thereof  as  aforesaid  (unless  the  commitment  aforesaid 
were  for  treason  or  felony,  plainly  and  specially  expressed  in  the 
warrant  of  commitment)  upon  payment  or  tender  of  the  charges  of 
bringing  the  said  prisoner,  to  be  ascertained  by  the  judge  or  court 
that  awarded  the  same,  and  endorsed  upon  the  said  writ,  not  exceed- 
ing twelve  pence  per  mile,  and  upon  security  given  by  his  own  bond 
to  pay  the  charges  of  carrying  back  the  prisoner,  if  he  shall  be 
remanded  by  the  court  or  judge  to  which  he  shall  be  brought  accord- 
ing to  the  true  intent  of  this  present  act,  and  that  he  will  not  make 
any  escape  by  the  way,  make  return  of  such  writ;  and  bring  or  cause 
to  be  brought  the  body  of  the  party  so  committed  or  restrained,  unto 
or  before  the  Lord  Chancellor,  or  Lord  Keeper  of  the  great  seal  of 
England  for  the  time  being,  or  the  judges  or  barons  of  the  said  court 
from  whence  the  said  writ  shall  issue,  or  unto  and  before  such  other 
person  or  persons  before  whom  the  said  writ  is  made  returnable, 
according  to  the  command  thereof;  and  shall  then  likewise  certify 
the  true  causes  of  his  detainer  or  imprisonment,  unless  the  commit- 
ment of  the  said  party  be  in  any  place  beyond  the  distance  of  twenty 
miles  from  the  place  or  places  where  such  court  or  person  is  or  shall 
be  residing;  and  if  beyond  the  distance  of  twenty  miles,  and  not 
above  one  hundred  miles,  then  within  the  space  of  ten  days,  and  if 
beyond  the  distance  of  one  hundred  miles,  then  within  the  space  of 
twenty  days,  after  such  delivery  aforesaid,  and  not  longer. 

III.  And  to  the  intent  that  no  sheriff,  gaoler  or  other  officer  may 
pretend  ignorance  of  the  import  of  any  such  writ ;  be  it  enacted  by 
the  authority  aforesaid,  that  all  such  writs  shall  be  marked  in  this 
manner,  per  statutum  tricesimo  primo  Caroli  secundi  regis,  and  shall  be 


>02  APPENDIX 

signed  by  the  person  that  awards  the  same;  and  if  any  person  or 
persons  shall  be  or  stand  committed  or  detained  as  aforesaid,  for  any 
crime,  unless  for  felony  or  treason  plainly  expressed  in  the  warrant 
of  commitment,  in  the  vacation-time,  and  out  of  term,  it  shall  and 
may  be  lawful  to  and  for  the  person  or  persons  so  committed  or 
detained  (other  than  persons  convict  or  in  execution  by  legal  process) 
or  any  one  on  his  or  their  behalf,  to  appeal  or  complain  to  the  Lord 
Chancellor  or  Lord  Keeper,  or  any  one  of  his  Majesty's  justices, 
either  of  the  one  bench  or  of  the  other,  or  the  barons  of  the  exchequer 
of  the  degree  of  the  coif;  and  the  said  Lord  Chancellor,  Lord  Keeper, 
justices  or  barons  or  any  of  them,  upon  view  of  the  copy  or  copies  of 
the  warrant  or  warrants  of  commitment  and  detainer,  or  otherwise 
upon  oath  made  that  such  copy  or  copies  were  denied  to  be  given  by 
such  person  or  persons  in  whose  custody  the  prisoner  or  prisoners  is 
or  are  detained,  are  hereby  authorized,  and  required,  upon  request 
made  in  writing  by  such  person  or  persons  or  any  on  his,  her  or  their 
behalf,  attested  and  subscribed  by  two  witnesses  who  were  present  at 
the  delivery  of  the  same,  to  award  and  grant  an  Habeas  Corpus  under 
the  seal  of  such  court  whereof  he  shall  then  be  one  of  the  judges,  to 
be  directed  to  the  officer  or  officers  in  whose  custody  the  party  so 
committed  or  detained  shall  be,  returnable  immediate  before  the  said 
Lord  Chancellor  or  Lord  Keeper,  or  such  justice,  baron  or  any  other 
justice  or  baron  of  the  degree  of  the  coif  of  any  of  the  said  courts ; 
and  upon  service  thereof  as  aforesaid,  the  officer  or  officers,  his  or  their 
under-officer  or  under-officers,  under-keeper  or  under-keepers,  or  their 
deputy,  in  whose  custody  the  party  is  so  committed  or  detained,  shall 
within  the  times  respectively  before  limited,  bring  such  prisoner  or 
prisoners  before  the  said  Lord  Chancellor  or  Lord  Keeper,  or  such 
justices,  barons  or  one  of  them,  before  whom  the  said  writ  is  made 
returnable,  and  in  case  of  his  absence  before  any  of  them,  with  the 
return  of  such  writ,  and  the  true  causes  of  the  commitment  and 
detainer;  and  thereupon  within  two  days  after  the  party  shall  be 
brought  before  them,  the  said  Lord  Chancellor  or  Lord  Keeper,  or 
such  justice  or  baron  before  whom  the  prisoner  shall  be  brought  as 
aforesaid,  shall  discharge  the  said  prisoner  from  his  imprisonment, 
taking  his  or  their  recognizance,  with  one  or  more  surety  or  sureties, 
in  any  sum  according  to  their  discretions,  having  regard  to  the  quality 
of  the  prisoner  and  nature  of  the  offence,  for  his  or  their  appearance 
in  the  court  of  king's  bench  the  term  following,  or  at  the  next  assizes, 
sessions,  or  general  gaol-delivery  of  and  for  such  county,  city,  or  place 
where  the  commitment  was,  or  where  the  oifence  was  committed,  or 
in  such  other  court  where  the  said  offence  is  properly  cognizable,  as 


APPENDIX  503 

the  case  shall  require,  and  then  shall  certify  the  said  writ  with  the 
return  thereof,  and  the  said  recognizance  or  recognizances  into  the 
said  court  where  such  appearance  is  to  be  made;  unless  it  shall 
appear  unto  the  said  Lord  Chancellor  or  Lord  Keeper,  or  justice  or 
justices,  or  baron  or  barons,  that  the  party  so  committed  is  detained 
upon  a  legal  process,  order  or  warrant,  out  of  some  court  that  hath 
jurisdiction  of  criminal  matters,  or  by  some  warrant  signed  and  sealed 
with  the  hand  and  seal  of  any  of  the  said  justices  or  barons,  or  some 
justice  or  justices  of  the  peace,  for  such  matters  or  offences  for  the 
which  by  the  law  the  prisoner  is  not  bailable. 

IV.  Provided  always,  and  be  it  enacted,  that  if  any  person  shall 
have  wilfully  neglected  by  the  space  of  two  whole  terms  after  his 
imprisonment,  to  pray  a  Habeas  Corpus  for  his  enlargement,  such  per- 
son so  wilfully  neglecting  shall  not  have  any  Habeas  Corpus  to  be 
granted  in  vacation-time,  in  pursuance  of  this  act. 

V.  And  be  it  further  enacted  by  the  authority  aforesaid,  that  if  any 
officer  or  officers,  his  or  their  under-officer  or  under-officers,  under-keeper 
or  under-keepers,  or  deputy,  shall  neglect  or  refuse  to  make  the  returns 
aforesaid,  or  to  bring  the  body  or  bodies  of  the  prisoner  or  prisoners 
according  to  the  command  of  the  said  writ,  within  the  respective 
times  aforesaid,  or  upon  demand  made  by  the  prisoner  or  person  in 
his  behalf,  shall  refuse  to  deliver,  or  within  the  space  of  six  hours 
after  demand  shall  not  deliver,  to  the  person  so  demanding,  a  true 
copy  of  the  warrant  or  warrants  of  commitment  and  detainer  of  such 
prisoner,  which  he  and  they  are  hereby  required  to  deliver  accord- 
ingly ;  all  and  every  the  head  gaolers  and  keepers  of  such  prisons,  and 
such  other  person  in  whose  custody  the  prisoner  shall  be  detained, 
shall  for  the  first  offence  forfeit  to  the  prisoner  or  party  grieved  the 
sum  of  one  hundred  pounds ;  and  for  the  second  offence  the  sum  of 
two  hundred  pounds,  and  shall  and  is  hereby  made  incapable  to  hold 
or  execute  his  said  office ;  the  said  penalties  to  be  recovered  by  the 
prisoner  or  party  grieved,  his  executors  or  administrators,  against 
such  offender,  his  executors  or  administrators,  by  any  action  of  debt, 
suit,  bill,  plaint,  or  information,  in  any  of  the  king's  courts  at  West- 
minster, wherein  no  essoin,  protection,  privilege,  injunction,  wager  of 
law,  or  stay  of  prosecution  by  non  vult  ulterius  prosequi,  or  otherwise, 
shall  be  admitted  or  allowed,  or  any  more  than  one  imparlance ;  and 
any  recovery  or  judgment  at  the  suit  of  any  party  grieved,  shall  be  a 
sufficient  conviction  for  the  first  offence ;  and  any  after  recovery  or 
judgment  at  the  suit  of  a  party  grieved  for  any  offence  after  the  first 
judgment,  shall  be  a  sufficient  conviction  to  bring  the  officers  or  per- 
son within  the  said  penalty  for  the  second  offence. 


604  APPENDIX 

VI.  And  for  the  prevention  of  unjust  vexation  by  reiterated  com- 
mitments for  the  same  offence ;  be  it  enacted  by  the  authority  afore- 
said, that  no  person  or  persons  which  shall  be  delivered  or  set  at  large 
upon  any  Habeas  Corpus,  shall  at  any  time  hereafter  be  again  im- 
prisoned or  committed  for  the  same  offence  by  any  person  or  persons 
whatsoever,  other  than  by  the  legal  order  and  process  of  such  court 
wherein  he  or  they  shall  be  bound  by  recognizance  to  appear,  or  other 
court  having  jurisdiction  of  the  cause ;  and  if  any  other  person  or 
persons  shall  knowingly  contrary  to  this  act  recommit  or  imprison, 
or  knowingly  procure  or  cause  to  be  recommitted  or  imprisoned,  for 
the  same  offence  or  pretended  offence,  any  person  or  persons  delivered 
or  set  at  large  as  aforesaid,  or  be  knowingly  aiding  or  assisting  therein, 
then  he  or  they  shall  forfeit  to  the  prisoner  or  party  grieved  the  sum 
of  five  hundred  pounds ;  any  colourable  pretence  or  variation  in  the 
warrant  or  warrants  of  commitment  notwithstanding,  to  be  recovered 
as  aforesaid. 

VII.  Provided  always,  and  be  it  further  enacted,  that  if  any  person 
or  persons  shall  be  committed  for  high  treason  or  felony,  plainly  and 
specially  expressed  in  the  warrant  of  commitment,  upon  his  prayer  or 
petition  in  open  court  the  first  week  of  the  term,  or  first  day  of  the 
sessions  of  Oyer  and  Terminer  or  general  gaol-delivery,  to  be  brought 
to  his  trial,  shall  not  be  indicted  some  time  in  the  next  term,  sessions 
of  Oyer  and  Terminer  or  general  gaol-delivery,  after  such  commit- 
ment ;  it  shall  and  may  be  lawful  to  and  for  the  judges  of  the  court 
of  king's  bench  and  justices  of  Oyer  and  Terminer  or  general  gaol- 
delivery,  and  they  are  hereby  required,  upon  motion  to  them  made  in 
open  court  the  last  day  of  the  term,  sessions  or  gaol-delivery,  either 
by  the  prisoner  or  any  one  in  his  behalf,  to  set  at  liberty  the  prisoner 
upon  bail,  unless  it  appear  to  the  judges  and  justices  upon  oath  made, 
that  the  witnesses  for  the  king  could  not  be  produced  the  same  term, 
sessions  or  general  gaol-delivery ;  and  if  any  person  or  persons  com- 
mitted as  aforesaid,  upon  his  prayer  or  petition  in  open  court  the  first 
week  of  the  term  or  first  day  of  the  sessions  of  Oyer  and  Terminer 
and  general  gaol-delivery,  to  be  brought  to  his  trial,  shall  not  be 
indicted  and  tried  the  second  term,  sessions  of  Oyer  and  Terminer  or 
general  gaol-delivery,  after  his  commitment,  or  upon  his  trial  shall  be 
acquitted,  he  shall  be  discharged  from  his  imprisonment. 

VIII.  Provided  always,  that  nothing  in  this  act  shall  extend  to 
discharge  out  of  prison  any  person  charged  in  debt,  or  other  action, 
or  with  process  in  any  civil  cause,  but  that  after  he  shall  be  discharged 
of  his  imprisonment  for  such  his  criminal  offence,  he  shall  be  kept  in 
custody  according  to  the  law,  for  such  other  suit. 


APPENDIX  506 

IX.  Provided  always,  and  be  it  enacted  by  the  authority  aforesaid, 
that  if  any  person  or  persons,  subjects  of  this  reahn,  shall  be  com- 
mitted to  any  prison  or  in  custody  of  any  officer  or  officers  whatsoever, 
for  any  criminal  or  supposed  criminal  matter,  that  the  said  person 
shall  not  be  removed  from  the  said  prison  and  custody  into  the  cus- 
tody of  any  other  officer  or  officers  ;  unless  it  be  by  Habeas  Corpus  or 
some  other  legal  writ ;  or  where  the  prisoner  is  delivered  to  the  con- 
stable or  other  inferior  officer  to  carry  such  prisoner  to  some  common 
gaol :  or  where  any  person  is  sent  by  order  of  any  judge  of  assize  or 
justice  of  the  peace  to  any  common  workhouse  or  house  of  correction ; 
or  where  the  prisoner  is  removed  from  one  prison  or  place  to  another 
within  the  same  county,  in  order  to  his  or  her  trial  or  discharge  in 
due  course  of  law;  or  in  case  of  sudden  fire  or  infection,  or  other 
necessity ;  and  if  any  person  or  persons  shall  after  such  commitment 
aforesaid  make  out  and  sign,  or  countersign  any  warrant  or  warrants 
for  such  removal  aforesaid,  contrary  to  this  act ;  as  well  he  that  makes 
or  signs,  or  countersigns  such  warrant  or  warrants  as  the  officer  or 
officers  that  obey  or  execute  the  same,  shall  suffer  and  incur  the  pains 
and  forfeitures  in  this  act  before  mentioned,  both  for  the  first  and 
second  offence  respectively,  to  be  recovered  in  manner  aforesaid  by 
the  party  grieved. 

X.  Provided  also,  and  be  it  further  enacted  by  the  authority  afore- 
said, that  it  shall  and  may  be  lawful  to  and  for  any  prisoner  and 
prisoners  as  aforesaid,  to  move  and  obtain  his  or  their  Habeas  Corpus 
as  well  out  of  the  high  court  of  chancery  or  court  of  exchequer,  as  out 
of  the  courts  of  king's  bench  or  common  pleas,  or  either  of  them ;  and 
if  the  said  Lord  Chancellor  or  Lord  Keeper,  or  any  judge  or  judges, 
baron  or  barons  for  the  time  being,  of  the  degree  of  the  coif,  of  any 
of  the  courts  aforesaid,  in  the  vacation-time,  upon  view  of  the  copy 
or  copies  of  the  warrant  or  warrants  of  commitment  or  detainer,  or 
upon  oath  made  that  such  copy  or  copies  were  denied  as  aforesaid, 
shall  deny  any  writ  of  Habeas  Corpus  by  this  act  required  to  be 
granted,  being  moved  for  as  aforesaid,  they  shall  severally  forfeit  to 
the  prisoner  or  party  grieved  the  sum  of  five  hundred  pounds,  to  be 
recovered  in  manner  aforesaid. 

XL  And  be  it  declared  and  enacted  by  the  authority  aforesaid, 
that  an  Habeas  Corpus  according  to  the  true  intent  and  meaning  of 
this^ct,  may  be  directed  and  run  into  any  county  palatine,  the  cinque 
ports,  or  other  privileged  places  within  the  kingdom  of  England, 
dominion  of  Wales,  or  town  of  Berwick  upon  Tweed,  and  the  islands 
of  Jersey  or  Guernsey;  any  law  or  usage  to  the  contrary  notwith- 
standing. 


506  APPENDIX 

XII.  And  for  preventing  illegal  imprisonments  in  prisons  beyond 
the  seas;  be  it  further  enacted  by  the  authority  aforesaid,  that  no 
subject  of  this  realm  that  now  is,  or  hereafter  shall  be  an  inhabitant 
or  resiant  of  this  kingdom  of  England,  dominion  of  Wales,  or  town 
of  Berwick  upon  Tweed,  shall  or  may  be  sent  prisoner  into  Scotland, 
Ireland,  Jersey,  Guernsey,  Tangier,  or  into  parts,  garrisons,  islands  or 
places  beyond  the  seas,  which  are  or  at  any  time  hereafter  shall  be 
within  or  without  the  dominions  of  his  Majesty,  his  heirs  or  suc- 
cessors ;  and  that  every  such  imprisonment  is  hereby  enacted  and 
adjudged  to  be  illegal ;  and  that  if  any  of  the  said  subjects  now  is  or 
hereafter  shaU  be  so  imprisoned,  every  such  person  and  persons  so 
imprisoned,  shall  and  may  for  every  such  imprisonment  maintain  by 
virtue  of  this  act  an  action  or  actions  of  false  imprisonment,  in  any 
of  his  Majesty's  courts  of  record,  against  the  person  or  persons  by 
whom  he  or  she  shall  be  so  committed,  detained,  imprisoned,  sent 
prisoner  or  transported,  contrary  to  the  true  meaning  of  this  act,  and 
against  all  or  any  person  or  persons  that  shaU  frame,  contrive,  write, 
seal  or  countersign  any  warrant  or  writing  for  such  commitment, 
detainer,  imprisonment,  or  transportation,  or  shall  be  advising,  aiding 
or  assisting  in  the  same,  or  any  of  them;  and  the  plaintiff  in  every 
such  action  shall  have  judgment  to  recover  his  treble  costs,  besides 
damages,  which  damages  so  to  be  given,  shall  not  be  less  than  five 
hundred  pounds ;  in  which  action  no  delay,  stay  or  stop  of  proceeding 
by  rule,  order  or  command,  nor  no  injunction,  protection  or  privilege 
whatsoever,  nor  any  more  than  one  imparlance  shall  be  allowed, 
excepting  such  rule  of  the  court  wherein  the  action  shall  depend,  made 
in  open  court,  as  shall  be  thought  in  justice  necessary,  for  special 
cause  to  be  expressed  in  the  said  rule ;  and  the  person  or  persons  who 
shall  knowingly  frame,  contrive,  write,  seal  or  countersign  any  war- 
rant for  such  commitment,  detainer,  or  transportation,  or  shall  so 
commit,  detain,  imprison  or  transport  any  person  or  persons  contrary 
to  this  act,  or  be  any  ways  advising,  aiding  or  assisting  therein,  being 
lawfully  convicted  thereof,  shall  be  disabled  from  thenceforth  to  bear 
any  oflBce  of  trust  or  profit  within  the  said  realm  of  England,  dominion 
of  Wales,  or  town  of  Berwick  upon  Tweed,  or  any  of  the  islands, 
territories  or  dominions  thereunto  belonging;  and  shall  incur  and 
sustain  the  pains,  penalties,  and  forfeitures  limited,  ordained  and  pro- 
vided in  and  by  the  statute  of  Provision  and  Prcemunire  made  in  the 
sixteenth  year  of  King  Richard  the  second ;  and  be  incapable  of  any 
pardon  from  the  king,  his  heirs  or  successors,  of  the  said  forfeitures, 
losses,  or  disabilities,  or  any  of  them. 

XIII.  Provided  always,  that  nothing  in  this  act  shall  extend  to 


APPENDIX  507 

give  benefit  to  any  person  who  shall  by  contract  in  writing  agree  with 
any  merchant  or  owner  of  any  plantation,  or  other  person  whatsoever, 
to  be  transported  to  any  parts  beyond  the  seas,  and  receive  earnest 
upon  such  agreement,  although  that  afterwards  such  person  shall 
renounce  such  contract, 

XIV.  Provided  always,  and  be  it  enacted,  that  if  any  person  or 
persons  lawfully  convicted  of  any  felony,  shall  in  open  court  pray  to 
be  transported  beyond  the  seas,  and  the  court  shall  think  fit  to  leave 
him  or  them  in  prison  for  that  purpose,  such  person  or  persons  may 
be  transported  into  any  parts  beyond  the  seas ;  this  act,  or  anything 
therein  contained  to  the  contrary  notwithstanding. 

XV.  Provided  also,  and  be  it  enacted,  that  nothing  herein  con- 
tained shall  be  deemed,  construed  or  taken,  to  extend  to  the  imprison- 
ment of  any  person  before  the  first  day  of  June  one  thousand  six 
hundred  seventy  and  nine,  or  to  anything  advised,  procured,  or  other- 
wise done,  relating  to  such  imprisonment ;  anything  herein  contained 
to  the  contrary  notwithstanding. 

XVI.  Provided  also,  that  if  any  person  or  persons  at  any  time 
resiant  in  this  realm,  shall  have  committed  any  capital  offence  in 
Scotland  or  Ireland,  or  any  of  the  islands,  or  foreign  plantations  of 
the  king,  his  heirs  or  successors,  where  he  or  she  ought  to  be  tried  for 
such  offence,  such  person  or  persons  may  be  sent  to  such  place,  there 
to  receive  such  trial,  in  such  manner  as  the  same  might  have  been 
used  before  the  making  of  this  act ;  anything  herein  contained  to  the 
contrary  notwithstanding. 

XVII.  Provided  also,  and  be  it  enacted,  that  no  person  or  persons 
shall  be  sued,  impleaded,  molested  or  troubled  for  any  offence  against 
this  act,  unless  the  party  offending  be  sued  or  impleaded  for  the  same 
within  two  years  at  the  most  after  such  time  wherein  the  offence  shall 
be  committed,  in  case  the  party  grieved  shall  not  be  then  in  prison ; 
and  if  he  shall  be  in  prison,  then  within  the  space  of  two  years  after 
the  decease  of  the  person  imprisoned,  or  his  or  her  delivery  out  of 
prison,  which  shall  first  happen. 

XVIII.  And  to  the  intent  no  person  may  avoid  his  trial  at  the 
assizes  or  general  gaol-delivery,  by  procuring  his  removal  before  the 
assizes,  at  such  time  as  he  cannot  be  brought  back  to  receive  his  trial 
there;  be  it  enacted,  that  after  the  assizes  proclaimed  for  that  county 
where  the  prisoner  is  detained,  no  person  shall  be  removed  from  the 
common  gaol  upon  any  Habeas  Corpus  granted  in  pursuance  of  this 
act,  but  upon  any  such  Habeas  Corpus  shall  be  brought  before  the 
judge  of  assize  in  open  court,  who  is  thereupon  to  do  what  to  justice 
shall  appertain. 


608  APPENDIX 

XIX.  Provided  nevertheless,  that  after  the  assizes  are  ended,  any 
person  or  persons  detained,  may  have  his  or  her  Habeas  Corpus  accord- 
ing to  the  direction  and  intention  of  this  act. 

XX.  And  be  it  also  enacted  by  the  authority  aforesaid,  that  if  any 
information,  suit  or  action  shall  be  brought  or  exhibited  against  any 
person  or  persons  for  any  offence  committed  or  to  be  committed  against 
the  form  of  this  law,  it  shall  be  lawful  for  such  defendants  to  plead 
the  general  issue,  that  they  are  not  guilty,  or  that  they  owe  nothing, 
and  to  give  such  special  matter  in  evidence  to  the  jury  that  shall  try  the 
same,  which  matter  being  pleaded  had  been  good  and  sufficient  matter 
in  law  to  have  discharged  the  said  defendant  or  defendants  against 
the  said  information,  suit  or  action,  and  the  said  matter  shall  be  then 
as  available  to  him  or  them,  to  all  intents  and  purposes,  as  if  he  or 
they  had  sufficiently  pleaded,  set  forth  or  alleged  the  same  matter  in 
bar  or  discharge  of  such  information,  suit  or  action. 

XXI.  And  because  many  times  persons  charged  with  petty  treason 
or  felony,  or  as  accessories  thereunto,  are  committed  upon  suspicion 
only,  whereupon  they  are  bailable,  or  not,  according  as  the  circum- 
stances making  out  that  suspicion  are  more  or  less  weighty,  which 
are  best  known  to  the  justices  of  peace  that  committed  the  persons, 
and  have  the  examinations  before  them,  or  to  other  justices  of  the 
peace  in  the  county ;  be  it  therefore  enacted,  that  where  any  person 
shall  appear  to  be  committed  by  any  judge  or  justice  of  the  peace, 
and  charged  as  accessory  before  the  fact,  to  any  petty  treason  or 
felony,  or  upon  suspicion  thereof,  or  with  suspicion  of  petty  treason 
or  felony,  which  petty  treason  or  felony  shall  be  plainly  and  specially 
expressed  in  the  warrant  of  commitment,  that  such  person  shall  not 
be  removed  or  bailed  by  virtue  of  this  act,  or  in  any  other  manner 
than  they  might  have  been  before  the  making  of  this  act.  —  {Statutes 
of  the  Realm,  v.  935-938.) 


A.D.  1689.    Bill  of  Rights. 

1  Will.  &  Mab.  Sess.  2.  c.  2. 

Whereas  the  Lords  Spiritual  and  Temporal,  and  Commons,  assem- 
bled at  Westminster,  lawfully,  fully,  and  freely  representing  all  the 
estates  of  the  people  of  this  realm,  did,  upon  the  thirteenth  day  of 
February,  in  the  year  of  our  Lord  one  thousand  six  hundred  eighty- 
eight,  present  unto  their  Majesties,  then  called  and  known  by  the 
names  and  style  of  William  and  Mary,  Prince  and  Princess  of  Orange, 


APPENDIX  509 

being  present  in  their  proper  persons,  a  certain  declaration  in  writ- 
ing, made  by  the  said  Lords  and  Commons,  in  the  words  following 
viz. : — 

Whereas  the  late  King  James  II,  by  the  assistance  of  diverse  evil 
counsellors,  judges,  and  ministers  employed  by  him,  did  endeavour  to 
subvert  and  extirpate  the  Protestant  religion,  and  the  laws  and  liber- 
ties of  this  kingdom  :  — 

1.  By  assuming  and  exercising  a  power  of  dispensing  with  and 
suspending  of  laws,  and  the  execution  of  laws,  without  consent  of 
Parliament. 

2.  By  committing  and  prosecuting  divers  worthy  prelates,  for 
humbly  petitioning  to  be  excused  from  concurring  to  the  same 
assumed  power. 

3.  By  issuing  and  causing  to  be  executed  a  commission  under  the 
Great  Seal  for  erecting  a  court,  called  the  Court  of  Commissioners 
for  Ecclesiastical  Causes. 

4.  By  levying  money  for  and  to  the  use  of  the  Crown,  by  pretence 
of  prerogative,  for  other  time,  and  in  other  manner  than  the  same 
was  granted  by  Parliament. 

5.  By  raising  and  keeping  a  standing  army  within  this  kingdom 
in  time  of  peace,  without  consent  of  Parliament,  and  quartering 
soldiers  contrary  to  law. 

6.  By  causing  several  good  subjects,  being  Protestants,  to  be  dis- 
armed, at  the  same  time  when  Papists  were  both  armed  and  employed 
contrary  to  law. 

7.  By  violating  the  freedom  of  election  of  members  to  serve  in 
Parliament. 

8.  By  prosecutions  in  the  Court  of  King's  Bench,  for  matters  and 
causes  cognizable  only  in  Parliament ;  and  by  diverse  other  arbitrary 
and  illegal  courses. 

9.  And  whereas  of  late  years,  partial,  corrupt,  and  unqualified 
persons  have  been  returned  and  served  on  juries  in  trials,  and  par- 
ticularly diverse  jurors  in  trials  for  high  treason,  which  were  not 
freeholders. 

10.  And  excessive  bail  hath  been  required  of  persons  committed  in 
criminal  cases,  to  elude  the  benefit  of  the  laws  made  for  the  liberty  of 
the  subjects. 

11.  And  excessive  fines  have  been  imposed;  and  illegal  and  cruel 
punishments  inflicted. 

12.  And  several  grants  and  promises  made  of  fines  and  forfeitures, 
before  any  conviction  or  judgment  against  the  persons  upon  whom 
the  same  were  to  be  levied. 


510  APPENDIX 

All  which  are  utterly  and  directly  contrary  to  the  known  laws  and 
statutes,  and  freedom  of  this  realm. 

And  whereas  the  said  late  King  James  II  having  abdicated  the 
government,  and  the  throne  being  thereby  vacant,  his  Highness  the 
Prince  of  Orange  (whom  it  hath  pleased  Almighty  God  to  make 
the  glorious  instrument  of  delivering  this  kingdom  from  popery  and 
arbitrary  power)  did  (by  the  advice  of  the  Lords  Spiritual  and  Tem- 
poral, and  diverse  principal  persons  of  the  Commons)  cause  letters  to 
be  written  to  the  Lords  Spiritual  and  Temporal,  being  Protestants, 
and  other  letters  to  the  several  counties,  cities,  universities,  boroughs, 
and  cinque  ports,  for  the  choosing  of  such  persons  as  represent  them, 
as  were  of  right  to  be  sent  to  Parliament,  to  meet  and  sit  at  West- 
minster upon  the  two-and-twentieth  day  of  January,  in  this  year  one 
thousand  six  hundred  eighty  and  eight,  in  order  to  such  an  establish- 
ment, as  that  their  religion,  laws  and  liberties  might  not  again  be  in 
danger  of  being  subverted;  upon  which  letters,  elections  have  been 
accordingly  made. 

And  thereupon  the  said  Lords  Spiritual  and  Temporal,  and  Com- 
mons, pursuant  to  their  respective  letters  and  elections,  being  now 
assembled  in  a  full  and  free  representation  of  this  nation,  taking  into 
their  most  serious  consideration  the  best  means  for  attaining  the  ends 
aforesaid,  do  in  the  first  place  (as  their  ancestors  in  like  case  have 
usually  done),  for  the  vindicating  and  asserting  their  ancient  rights 
and  liberties,  declare  :  — 

1.  That  the  pretended  power  of  suspending  of  laws,  or  the  execution 
of  laws,  by  regal  authority,  without  consent  of  parliament,  is  illegal. 

2.  That  the  pretended  power  of  dispensing  with  laws,  or  the  exe- 
cution of  laws  by  regal  authority,  as  it  hath  been  assumed  and  exer- 
cised of  late,  is  illegal. 

3.  That  the  commission  for  erecting  the  late  Court  of  Commission- 
ers for  Ecclesiastical  Causes,  and  all  other  commissions  and  courts  of 
like  nature,  are  illegal  and  pernicious. 

4.  That  levying  money  for  or  to  the  use  of  the  Crown,  by  pretence 
of  prerogative,  without  grant  of  parliament,  for  longer  time  or  in 
other  manner  than  the  same  is  or  shall  be  granted,  is  illegal. 

5.  That  it  is  the  right  of  the  subjects  to  petition  the  king,  and  all 
commitments  and  prosecutions  for  such  petitioning  are  illegal. 

6.  That  the  raising  or  keeping  a  standing  army  within  the  king- 
dom in  time  of  peace,  unless  it  be  with  consent  of  parliament,  is 
against  law. 

7.  That  the  subjects  which  are  Protestants  may  have  arms  for  their 
defence  suitable  to  their  conditions,  and  as  allowed  by  law. 


APPENDIX  511 

8.  That  election  of  members  of  parliament  ought  to  be  free. 

9.  That  the  freedom  of  speech,  and  debates  or  proceedings  in 
parliament,  ought  not  to  be  impeached  or  questioned  in  any  court 
or  place  out  of  parliament. 

10.  That  excessive  bail  ought  not  to  be  required,  nor  excessive 
fines  imposed;  nor  cruel  and  unusual  punishments  inflicted. 

11.  That  jurors  ought  to  be  duly  impanelled  and  returned,  and 
jurors  which  pass  upon  men  in  trials  for  high  treason  ought  to  be 
freeholders. 

12.  That  all  grants  and  promises  of  fines  and  forfeitures  of  par- 
ticular persons  before  conviction,  are  illegal  and  void. 

13.  And  that  for  redress  of  all  grievances,  and  for  the  amending, 
strengthening,  and  preserving  of  the  laws,  parliament  ought  to  be 
held  frequently. 

And  they  do  claim,  demand,  and  insist  upon  all  and  singular  the 
premises,  as  their  undoubted  rights  and  liberties ;  and  that  no  declara- 
tions, judgments,  doings  or  proceedings,  to  the  prejudice  of  the  people 
in  any  of  the  said  premises,  ought  in  any  wise  to  be  drawn  hereafter 
into  consequence  or  example. 

To  which  demand  of  their  rights  they  are  particularly  encour- 
aged by  the  declaration  of  his  Highness  the  Prince  of  Orange,  as 
being  the  only  means  for  obtaining  a  full  redress  and  remedy 
therein. 

Having  therefore  an  entire  confidence  that  his  said  Highness  the 
Prince  of  Orange  will  perfect  the  deliverance  so  far  advanced  by  him, 
and  will  still  preserve  them  from  the  violation  of  their  rights,  which 
they  have  here  asserted,  and  from  all  other  attempts  upon  their  reli- 
gion, rights,  and  liberties : 

II.  The  said  Lords  Spiritual  and  Temporal,  and  Commons,  as- 
sembled at  Westminster,  do  resolve,  that  William  and  Mary,  Prince 
and  Princess  of  Orange,  be,  and  be  declared,  King  and  Queen  of 
England,  France,  and  Ireland,  and  the  dominions  thereunto  belonging, 
to  hold  the  Crown  and  royal  dignity  of  the  said  kingdoms  and  domin- 
ions to  them  the  said  Prince  and  Princess  during  their  lives,  and  the 
life  of  the  survivor  of  them ;  and  that  the  sole  and  full  exercise  of  the 
regal  power  be  only  in,  and  executed  by,  the  said  Prince  of  Orange, 
in  the  names  of  the  said  Prince  and  Princess,  during  their  joint  lives ; 
and  after  their  deceases,  the  said  Crown  and  royal  dignity  of  the  said 
kingdoms  and  dominions  to  be  to  the  heirs  of  the  body  of  the  said 
Princess;  and  for  default  of  such  issue  to  the  Princess  Anne  of 
Denmark,  and  the  heirs  of  her  body ;  and  for  default  of  such  issue 
to  the  heirs  of  the  body  of  the  said  Prince  of  Orange.     And  the 


512  APPENDIX 

Lords  Spiritual  and  Temporal,  and  Commons,  do  pray  the  said  Prince 
and  Princess  to  accept  the  same  accordingly. 

III.  And  that  the  oaths  hereafter  mentioned  be  taken  by  all  persons 
of  whom  the  oaths  of  allegiance  and  supremacy  might  be  required  by 
law,  instead  of  them;  and  that  the  said  oaths  of  allegiance  and 
supremacy  be  abrogated. 

I,  A.  B.,  do  sincerely  promise  and  swear,  That  I  will  be  faithful 
and  bear  true  allegiance  to  their  Majesties  King  William  and  Queen 
Mary :  So  help  me  God. 

I,  A.  B.,  do  swear,  That  I  do  from  my  heart,  abhor,  detest,  and 
abjure  as  impious  and  heretical,  that  damnable  doctrine  and  position, 
that  Princes  excommunicated  or  deprived  by  the  Pope,  or  any  author- 
ity of  the  See  of  Rome,  may  be  deposed  or  murdered  by  their  subjects, 
or  any  other  whatsoever.  And  I  do  declare.  That  no  foreign  prince, 
person,  prelate,  state,  or  potentate  hath,  or  ought  to  have,  any  juris- 
diction, power,  superiority,  pre-eminence,  or  authority  ecclesiastical  or 
spiritual,  within  this  realm :  So  help  me  God. 

IV.  Upon  which  their  said  Majesties  did  accept  the  Crown  and 
royal  dignity  of  the  kingdoms  of  England,  France,  and  Ireland,  and 
the  dominions  thereunto  belonging,  according  to  the  resolution  and 
desire  of  the  said  Lords  and  Commons  contained  in  the  said  declara- 
tion. 

V.  And  thereupon  their  Majesties  were  pleased,  that  the  said 
Lords  Spiritual  and  Temporal,  and  Commons,  being  the  two  Houses 
of  Parliament,  should  continue  to  sit,  and  with  their  Majesties'  royal 
concurrence  make  effectual  provision  for  the  settlement  of  the  religion, 
laws,  and  liberties  of  this  kingdom,  so  that  the  same  for  the  future 
might  not  be  in  danger  again  of  being  subverted ;  to  which  the  said 
Lords  Spiritual  and  Temporal,  and  Commons,  did  agree  and  proceed 
to  act  accordingly. 

VI.  Now  in  pursuance  of  the  premises,  the  said  Lords  Spiritual 
and  Temporal,  and  Commons,  in  parliament  assembled,  for  the  rati- 
fying, confirming,  and  establishing  the  said  declaration,  and  the 
articles,  clauses,  matters,  and  things  therein  contained,  by  the  force 
of  a  law  made  in  due  form  by  authority  of  parliament,  do  pray  that 
it  may  be  declared  and  enacted,  That  all  and  singular  the  rights  and 
liberties  asserted  and  claimed  in  the  said  declaration,  are  the  true, 
ancient,  and  indubitable  rights  and  liberties  of  the  people  of  this 
kingdom,  and  so  shall  be  esteemed,  allowed,  adjudged,  deemed,  and 


APPENDIX  513 

taken  to  be,  and  that  all  and  every  the  particulars  aforesaid  shall  be 
firmly  and  strictly  holden  and  observed,  as  they  are  expressed  in  the 
said  declaration ;  and  all  officers  and  ministers  whatsoever  shall  serve 
their  Majesties  and  their  successors  according  to  the  same  in  all  times 
to  come. 

VII.  And  the  said  Lords  Spiritual  and  Temporal,  and  Commons, 
seriously  considering  how  it  hath  pleased  Almighty  God,  in  his 
marvellous  providence,  and  merciful  goodness  to  this  nation,  to  pro- 
vide and  preserve  their  said  Majesties'  royal  persons  most  happily  to 
reign  over  us  upon  the  throne  of  their  ancestors,  for  which  they 
render  unto  Him  from  the  bottom  of  their  hearts  their  humblest 
thanks  and  praises,  do  truly,  firmly,  assuredly,  and  in  the  sincerity  of 
their  hearts,  think,  and  do  hereby  recognize,  acknowledge,  and  declare, 
that  King  James  II  having  abdicated  the  government,  and  their 
Majesties  having  accepted  the  Crown  and  royal  dignity  aforesaid, 
their  said  Majesties  did  become,  were,  are,  and  of  right  ought  to  be, 
by  the  laws  of  this  realm,  our  sovereign  liege  Lord  and  Lady,  King 
and  Queen  of  England,  France,  and  Ireland,  and  the  dominions  there- 
unto belonging,  in  and  to  whose  princely  persons  the  royal  State, 
Crown,  and  dignity  of  the  same  realms,  with  all  honours,  styles,  titles, 
regalities,  prerogatives,  powers,  jurisdictions  and  authorities  to  the 
same  belonging  and  appertaining,  are  most  fully,  rightfully,  and 
entirely  invested  and  incorporated,  united,  and  annexed. 

VIII.  And  for  preventing  all  questions  and  divisions  in  this  realm, 
by  reason  of  any  pretended  titles  to  the  Crown,  and  for  preserving  a 
certainty  in  the  succession  thereof,  in  and  upon  which  the  unity, 
peace,  tranquillity,  and  safety  of  this  nation  doth,  under  God,  wholly 
consist  and  depend,  the  said  Lords  Spiritual  and  Temporal,  and 
Commons,  do  beseech  their  Majesties  that  it  may  be  enacted,  estab- 
lished, and  declared,  that  the  Crown  and  regal  government  of  the 
said  kingdoms  and  dominions,  with  all  and  singular  the  premises 
thereunto  belonging  and  appertaining,  shall  be  and  continue  to  their 
said  Majesties,  and  the  survivor  of  them,  during  their  lives,  and  the 
life  of  the  survivor  of  them.  And  that  the  entire,  perfect,  and  full 
exercise  of  the  regal  power  and  government  be  only  in,  and  executed 
by,  his  Majesty,  in  the  names  of  both  their  Majesties  during  their  joint 
lives ;  and  after  their  deceases  the  said  Crown  and  premises  shall  be 
and  remain  to  the  heirs  of  the  body  of  her  Majesty :  and  for  default 
of  such  issue,  to  her  Royal  Highness  the  Princess  Anne  of  Denmark, 
and  the  heirs  of  her  body ;  and  for  default  of  such  issue,  to  the  heirs 
of  the  body  of  his  said  Majesty :  and  thereunto  the  said  Lords  Spirit- 
ual and  Temporal,  and  Commons,  do,  in  the  name  of  all  the  people 

2l 


514  APPENDIX 

aforesaid,  most  humbly  and  faithfully  submit  themselves,  their  heirs 
and  posterities,  for  ever :  and  do  faithfully  promise.  That  they  will 
stand  to,  maintain,  and  defend  their  said  Majesties,  and  also  the  limi- 
tation and  succession  of  the  Crown  herein  specified  and  contained,  to 
the  utmost  of  their  powers,  with  their  lives  and  estates,  against  all 
persons  whatsoever  that  shall  attempt  anything  to  the  contrary. 

IX.  And  whereas  it  hath  been  found  by  experience,  that  it  is 
inconsistent  with  the  safety  and  welfare  of  this  Protestant  kingdom, 
to  be  governed  by  a  Popish  prince,  or  by  any  king  or  queen  marrying 
a  Papist,  the  said  Lords  Spiritual  and  Temporal,  and  Commons,  do 
further  pray  that  it  may  be  enacted.  That  all  and  every  person  and 
persons  that  is,  are,  or  shall  be  reconciled  to,  or  shall  hold  communion 
with,  the  See  or  Church  of  Rome,  or  shall  profess  the  Popish  religion, 
or  shall  marry  a  Papist,  shall  be  excluded,  and  be  for  ever  incapable 
to  inherit,  possess,  or  enjoy  the  Crown  and  government  of  this  realm, 
and  Ireland,  and  the  dominions  thereunto  belonging,  or  any  part  of 
the  same,  or  to  have,  use,  or  exercise  any  regal  power,  authority,  or 
jurisdiction  within  the  same ;  and  in  all  and  every  such  case  or  cases 
the  people  of  these  realms  shall  be  and  are  hereby  absolved  of  their 
allegiance ;  and  the  said  Crown  and  government  shall  from  time  to 
time  descend  to,  and  be  enjoyed  by,  such  person  or  persons,  being 
Protestants,  as  should  have  inherited  and  enjoyed  the  same,  in  case 
the  said  person  or  persons  so  reconciled,  holding  communion,  or  pro- 
fessing, or  marrying  as  aforesaid,  were  naturally  dead. 

X.  And  that  every  king  and  queen  of  this  realm,  who  at  any  time 
hereafter  shall  come  to  and  succeed  in  the  Imperial  Crown  of  this 
kingdom,  shall,  on  the  first  day  of  the  meeting  of  the  first  parliament, 
next  after  his  or  her  coming  to  the  Crown,  sitting  in  his  or  her  throne 
in  the  House  of  Peers,  in  the  presence  of  the  Lords  and  Commons 
therein  assembled,  or  at  his  or  her  coronation,  before  such  person  or 
persons  who  shall  administer  the  coronation  oath  to  him  or  her, 
at  the  time  of  his  or  her  taking  the  said  oath  (which  shall  first  hap- 
pen), make,  subscribe,  and  audibly  repeat  the  declaration  mentioned 
in  the  statute  made  in  the  thirteenth  year  of  the  reign  of  King  Charles 
II,  intituled  'An  Act  for  the  more  effectual  preserving  the  King's  per- 
son and  government,  by  disabling  Papists  from  sitting  in  either  House 
of  Parliament.'  But  if  it  shall  happen,  that  such  king  or  queen,  upon 
his  or  her  succession  to  the  Crown  of  this  realm,  shall  be  under  the  age 
of  twelve  years,  then  every  such  king  or  queen  shall  make,  subscribe, 
and  audibly  repeat  the  said  declaration  at  his  or  her  coronation,  or  the 
first  day  of  meeting  of  the  first  parliament  as  aforesaid,  which  shall 
first  happen  after  such  king  or  queen  shall  have  attained  the  said  age 
of  twelve  vears. 


APPENDIX  515 

XT.  All  which  their  Majesties  are  contented  and  pleased  shall  be 
declared,  enacted,  and  established  by  authority  of  this  present  parlia- 
ment, and  shall  stand,  remain,  and  be  the  law  of  this  realm  for  ever; 
and  the  same  are  by  their  said  Majesties,  by  and  with  the  advice  and 
consent  of  the  Lords  Spiritual  and  Temporal,  and  Commons,  in  parlia- 
ment assembled,  and  by  the  authority  of  the  same,  declared,  enacted, 
or  established  accordingly. 

XII.  And  be  it  further  declared  and  enacted  by  the  authority 
aforesaid  That  from  and  after  this  present  session  of  parliament,  no 
dispensation  by  non  obstante  of  or  to  any  statute,  or  any  part  thereof, 
shall  be  allowed,  but  that  the  same  shall  be  held  void  and  of  no  effect, 
except  a  dispensation  be  allowed  of  in  such  statute,  and  except  in 
such  cases  as  shall  be  specially  provided  for  by  one  or  more  bill  or 
bills  to  be  passed  during  this  present  session  of  parliament. 

XIII.  Provided  that  no  charter,  or  grant,  or  pardon  granted  before 
the  three-and-twentieth  day  of  October,  in  the  year  of  our  Lord  One 
thousand  six  hundred  eighty-nine,  shall  be  any  ways  impeached  or 
invalidated  by  this  act,  but  that  the  same  shall  be  and  remain  of  the 
same  force  and  effect  in  law,  and  no  other,  than  as  if  this  act  had 
never  been  made.  —  (Statutes  of  the  Realm,  vi.  142-145.) 


A.D.  1700.    The  Act  op  Settlement. 

12  &  13  Will.  III. 

An  Act  for  the  further  Limitation  of  the  Crown,  and  better  securing 
the  Rights  and  Liberties  of  the  Subject. 

Whereas  in  the  first  year  of  the  reign  of  your  Majesty,  and  of  our 
late  most  Gracious  Sovereign  Lady  Queen  Mary  (of  blessed  memory) 
an  Act  of  Parliament  was  made,  intituled,  *  An  Act  for  declaring  the 
Rights  and  Liberties  of  the  Subject,  and  for  settling  the  Succession 
of  the  Crown,'  wherein  it  was  (amongst  other  things)  enacted,  estab- 
lished and  declared.  That  the  Crown  and  Regal  Government  of  the 
kingdoms  of  England,  France  and  Ireland,  and  the  dominions  there- 
unto belonging,  should  be  and  continue  to  your  Majesty  and  the  said 
late  Queen,  during  the  joint-lives  of  your  Majesty  and  the  said  Queen, 
and  to  the  survivor :  And  that  after  the  decease  of  your  Majesty  and 
of  the  said  Queen,  the  said  Crown  and  Regal  Government  should  be 
and  remain  to  the  heirs  of  the  body  of  the  said  late  Queen  :  And  for 
default  of  such  issue,  to  her  Royal  Highness  the  Princess  Anne  of 


516  APPENDIX 

Denmark,  and  the  heirs  of  her  body :  And  for  default  of  such  issue, 
to  the  heirs  of  the  body  of  your  Majesty.  And  it  was  thereby  fur- 
ther  enacted,  That  all  and  every  person  and  persons  that  then  were, 
or  afterwards  should  be  reconciled  to,  or  should  hold  communion  with 
the  See  or  Church  of  Rome,  or  should  profess  the  Popish  religion,  or 
marry  a  Papist,  should  be  excluded,  and  are  by  that  act  made  for 
ever  uncapable  to  inherit,  possess,  or  enjoy  the  Crown  and  Govern- 
ment of  this  realm  and  Ireland,  and  the  dominions  thereunto  belong- 
ing, or  any  part  of  the  same,  or  to  have,  use,  or  exercise  any  regal 
power,  authority,  or  jurisdiction  within  the  same :  And  in  all  and 
every  such  case  and  cases  the  people  of  these  realms  shall  be  and  are 
thereby  absolved  of  their  allegiance :  And  that  the  said  Crown  and 
Government  shall  from  time  to  time  descend  to  and  be  enjoyed  by 
such  person  or  persons,  being  Protestants,  as  should  have  inherited 
and  enjoyed  the  same,  in  case  the  said  person  or  persons,  so  recon- 
ciled, holding  communion,  professing,  or  marrying  as  aforesaid,  were 
naturally  dead.  After  the  making  of  which  statute,  and  the  settle- 
ment therein  contained,  your  Majesty's  good  subjects,  who  were 
restored  to  the  full  and  free  possession  and  enjoyment  of  their  reli- 
gion, rights,  and  liberties,  by  the  providence  of  God  giving  success  to 
your  Majesty's  just  undertakings  and  unwearied  endeavours  for  that 
purpose,  had  no  greater  temporal  felicity  to  hope  or  wish  for,  than  to 
see  a  royal  progeny  descending  from  your  Majesty,  to  whom  (under 
God)  they  owe  their  tranquillity,  and  whose  ancestors  have  for  many 
years  been  principal  assertors  of  the  reformed  religion  and  the  liber- 
ties of  Europe,  and  from  our  said  most  gracious  Sovereign  Lady, 
whose  memory  will  always  be  precious  to  the  subjects  of  these  realms  : 
And  it  having  since  pleased  Almighty  God  to  take  away  our  said 
Sovereign  Lady,  and  also  the  most  hopeful  Prince  William  Duke  of 
Gloucester  (the  only  surviving  issue  of  her  Royal  Highness  the 
Princess  Anne  of  Denmark)  to  the  unspeakable  grief  and  sorrow  of 
your  Majesty  and  your  said  good  subjects,  who  under  such  losses 
being  sensibly  put  in  mind,  that  it  standeth  wholly  in  the  pleasure  of 
Almighty  God  to  prolong  the  lives  of  your  Majesty  and  of  her  Royal 
Highness,  and  to  grant  to  your  Majesty,  or  to  her  Royal  Highness, 
such  issue  as  may  be  inheritable  to  the  Crown  and  regal  Government 
aforesaid,  by  the  respective  limitations  in  the  said  recited  Act  con- 
tained, do  constantly  implore  the  Divine  Mercy  for  those  blessings : 
and  your  Majesty's  said  subjects  having  daily  experience  of  your 
royal  care  and  concern  for  the  present  and  future  welfare  of  these 
kingdoms,  and  particularly  recommending  from  your  Throne  a  fur- 
ther provision  to  be  made  for  the  succession  of  the  Crowu  in  tliQ 


APPENDIX  617 

Protestant  line,  for  the  happiness  of  the  nation,  and  the  security  of 
our  religion ;  and  it  being  absolutely  necessary  for  the  safety,  peace 
and  quiet  of  this  realm,  to  obviate  all  doubts  and  contentions  in  the 
same,  by  reason  of  any  pretended  title  to  the  Crown,  and  to  maintain 
a  certainty  in  the  succession  thereof,  to  which  your  subjects  may 
safely  have  recourse  for  their  protection,  in  case  the  limitations  in 
the  said  recited  Act  should  determine :  Therefore  for  a  further  pro- 
vision of  the  succession  of  the  Crown  in  the  Protestant  line,  we  your 
Majesty's  most  dutiful  and  loyal  subjects,  the  Lords  Spiritual  and 
Temporal,  and  Commons,  in  this  present  Parliament  assembled,  do 
beseech  your  Majesty  that  it  may  be  enacted  and  declared,  and  be  it 
enacted  and  declared  by  the  King's  most  excellent  Majesty,  by  and 
with  the  advice  and  consent  of  the  Lords  Spiritual  and  Temporal, 
and  Commons,  in  this  present  Parliament  assembled,  and  by  the 
authority  of  the  same.  That  the  most  Excellent  Princess  Sophia, 
Electress  and  Duchess  Dowager  of  Hanover,  daughter  of  the  most 
Excellent  Princess  Elizabeth,  late  Queen  of  Bohemia,  daughter  of 
our  late  Sovereign  Lord  King  James  I,  of  happy  memory,  be  and  is 
hereby  declared  to  be  the  next  in  succession,  in  the  Protestant  line, 
to  the  Imperial  Crown  and  dignity  of  the  said  realms  of  England, 
France  and  Ireland,  with  the  dominions  and  territories  thereunto 
belonging,  after  his  Majesty,  and  the  Princess  Anne  of  Denmark,  and 
in  default  of  issue  of  the  said  Princess  Anne,  and  of  his  Majesty 
respectively:  And  that  from  and  after  the  deceases  of  his  said 
Majesty,  our  now  Sovereign  Lord,  and  of  her  Royal  Highness  the 
Princess  Anne  of  Denmark,  and  for  default  of  issue  of  the  said 
Princess  Anne,  and  of  his  Majesty  respectively,  the  Crown  and  regal 
Government  of  the  said  kingdoms  of  England,  France  and  Ireland, 
and  of  the  dominions  thereunto  belonging,  with  the  royal  state  and 
dignity  of  the  said  realms,  and  all  honours,  stiles,  titles,  regalities, 
prerogatives,  powers,  jurisdictions  and  authorities,  to  the  same  belong- 
ing and  appertaining,  shall  be,  remain,  and  continue  to  the  said  most 
Excellent  Princess  Sophia,  and  the  heirs  of  her  body,  being  Protes- 
tants: And  thereunto  the  said  Lords  Spiritual  and  Temporal,  and 
Commons,  shall  and  will,  in  the  name  of  all  the  people  of  this  realm, 
most  humbly  and  faithfully  submit  themselves,  their  heirs  and  pos- 
terities ;  and  do  faithfully  promise  that  after  the  deceases  of  his 
Majesty,  and  her  Royal  Highness,  and  the  failure  of  the  heirs  of  their 
respective  bodies,  to  stand  to,  maintain,  and  defend  the  said  Princess 
Sophia,  and  the  heirs  of  her  body,  being  Protestants,  according  to  the 
limitation  and  succession  of  the  Crown  in  this  Act  specified  and  con- 
tained, to  the  utmost  of  their  powers,  with  their  lives  and  estates, 


518  APPENDIX 

against  all  persons  whatsoever  that  shall  attempt  anything  to  the^ 
contrary. 

II.  Provided  always,  and  it  is  hereby  enacted,  That  all  and  every 
person  and  persons,  who  shall  or  may  take  or  inherit  the  said  Crown, 
by  virtue  of  the  limitation  of  this  present  Act,  and  is,  are  or  shall  be 
reconciled  to,  or  shall  hold  communion  with,  the  See  or  Church  of 
Rome,  or  shall  profess  the  Popish  religion,  or  shall  marry  a  Papist, 
shall  be  subject  to  such  incapacities,  as  in  such  case  or  cases  are  by 
the  said  recited  Act  provided,  enacted,  and  established;  and  that 
every  King  and  Queen  of  this  realm,  who  shall  come  to  and  succeed 
in  the  Imperial  Crown  of  this  kingdom,  by  virtue  of  this  Act,  shall 
have  the  Coronation  Oath  administered  to  him,  her  or  them,  at  their 
respective  Coronations,  according  to  the  Act  of  Parliament  made  in 
the  first  year  of  the  reign  of  his  Majesty,  and  the  said  late  Queen 
Mary,  intituled,  *■  An  Act  for  establishing  the  Coronation  Oath,'  and 
shall  make,  subscribe,  and  repeat  the  Declaration  in  the  Act  first 
above  recited,  mentioned  or  referred  to,  in  the  manner  and  form 
thereby  prescribed. 

III.  And  whereas  it  is  requisite  and  necessary  that  some  further 
provision  be  made  for  securing  our  religion,  laws  and  liberties,  from 
and  after  the  death  of  his  Majesty  and  the  Princess  Anne  of  Den- 
mark, and  in  default  of  issue  of  the  body  of  the  said  Princess,  and  of 
his  Majesty  respectively :  Be  it  enacted  by  the  King's  most  Excellent 
Majesty,  by  and  with  the  advice  and  consent  of  the  Lords  Spiritual 
and  Temporal,  and  Commons,  in  Parliament  assembled,  and  by  the 
authority  of  the  same, 

That  whosoever  shall  hereafter  come  to  the  possession  of  this 
Crown,  shall  join  in  communion  with  the  Church  of  England,  as  by 
law  established. 

That  in  case  the  Crown  and  imperial  dignity  of  this  realm  shall 
hereafter  come  to  any  person,  not  being  a  native  of  this  kingdom  of 
England,  this  nation  be  not  obliged  to  engage  in  any  war  for  the 
defence  of  any  dominions  or  territories  which  do  not  belong  to  the 
Crown  of  England,  without  the  consent  of  Parliament. 

That  no  person  who  shall  hereafter  come  to  the  possession  of  this 
Crown,  shall  go  out  of  the  dominions  of  England,  Scotland,  or 
Ireland,  without  consent  of  Parliament. 

That  from  and  after  the  time  that  the  further  limitation  by 
this  Act  shall  take  effect,  all  matters  and  things  relating  to  the 
well  governing  of  this  kingdom,  which  are  properly  cognizable  in 
the  Privy  Council  by  the  laws  and  customs  of  this  realm,  shall  be 
transacted  there,  and  all  resolutions  taken  thereupon  shall  be  signed 


APPENDIX  619 

by  such  of  the  Privy  Council  as  shall  advise  and  consent  to  the 
same. 

That  after  the  said  limitation  shall  take  effect  as  aforesaid,  no 
person  born  out  of  the  kingdoms  of  England,  Scotland,  or  Ireland, 
or  the  dominions  thereunto  belonging  (although  he  be  naturalised  or 
made  a  denizen,  except  such  as  are  born  of  English  parents),  shall  be 
capable  to  be  of  the  Privy  Council,  or  a  Member  of  either  House  of 
Parliament,  or  to  enjoy  any  office  or  place  of  trust,  either  civil  or 
military,  or  to  have  any  grant  of  lands,  tenements  or  hereditaments 
from  the  Crown,  to  himself  or  to  any  other  or  others  in  trust  for  him. 

That  no  person  who  has  an  office  or  place  of  profit  under  the  King, 
or  receives  a  pension  from  the  Crown,  shall  be  capable  of  serving  as 
a  Member  of  the  House  of  Commons. 

That  after  the  said  limitation  shall  take  effect  as  aforesaid.  Judges' 
Commissions  be  made  Quamdiu  se  bene  gesserint,  and  their  salaries 
ascertained  and  established ;  but  upon  the  Address  of  both  Houses  of 
Parliament  it  may  be  lawful  to  remove  them. 

That  no  pardon  under  the  Great  Seal  of  England  be  pleadable  to 
an  impeachment  by  the  Commons  in  Parliament. 

IV.  And  whereas  the  Laws  of  England  are  the  birthright  of  the 
people  thereof,  and  all  the  Kings  and  Queens,  who  shall  ascend  the 
Throne  of  this  realm,  ought  to  administer  the  Government  of  the  same 
according  to  the  said  laws,  and  all  their  officers  and  ministers'  ought 
to  serve  them  respectively  according  to  the  same:  The  said  Lords 
Spiritual  and  Temporal,  and  Commons,  do  therefore  further  humbly 
pray,  That  all  the  Laws  and  Statutes  of  this  realm  for  securing  the 
established  religion,  and  the  rights  and  liberties  of  the  people  thereof, 
and  all  other  Laws  and  Statutes  of  the  same  now  in  force,  may  be 
ratified  and  confirmed,  and  the  same  are  by  his  Majesty,  by  and  with 
the  advice  and  consent  of  the  Lords  Spiritual  and  Temporal,  and 
Commons,  and  by  the  authority  of  the  same,  ratified  and  confirmed 
accordingly.  —  (Statutes  of  the  Realm,  vii.  636-638.) 


INDEX 


Abhorrers,  309. 

Absolute:     authority    derived    from 

Bible,  274;    government,   397,  398; 

sovereignty  and  asking  for  supplies, 

270,  271. 
Absolutism    in    Scotland:     280;     in 

Church  government,  274,  276. 
Addington,  397,  398. 
Administration :  and  the  Constitution, 

90;  and  judicial  business,  90,  91. 
Admiralty  division,  99. 
Advice  of  Cabinet  to  Sovereign,  436, 

437. 
Agitations :  popular  and  government, 

421  et  seq.;  suppressed,  423;    and 

the  Wesleys,  422. 
Alfred,  King,  his  influence,  480. 
Amendments  of  government  bills,  27. 
American:    colonists    revolt    against 

taxation,  375,  376;  colonists  and  the 

Whigs,  463;  Puritans,  287;  did  not 

desire  representation  in  English  Par- 
liament, 378,  379. 
AmericanConstitution:  compared  with 

English,  l-€,  7-16 ;  way  of  making, 

112. 
Auue  :  318,  334 ;  death  of  her  last  son, 

322 ;    and   the   Cabinet,   ch.   xxxv ; 

and  the  creation  of  peers,  51. 
Anselm,  140-142. 

Anson,  Law  and  Custom  of  the  Con- 
stitution, referred  to,  42,  50,  52,  81, 

473. 
Appeals,  Court  of,  99. 
Appellant,  Lords,  189. 
Archbishop's  Court,  104. 
Aristocracy,  considered  essential  to  a 

constitution  by  Burke,  469. 
Arlington,  305. 


Army,  George  III.  claims  exclusive 
control  of,  400. 

Arrest  of  members  of  Long  Parlia- 
ment, 292. 

Articles,  Lords  of  the,  280. 

Ashley,  English  Economic  History, re- 
f erred  to,  136,  165,  186,  208,  222,  254. 

Assembly,  national,  141-144. 

Assize,  Bloody,  315. 

Associations,  liveried,  207. 

Attainder,  Bill  of,  266. 

Attendance  at  Parliament  compelled 
to  prevent  dissolution,  28. 

Attendants  of  the  Monarch  and  the 
Prime  Minister,  69,  407,  408,  436. 

Auditing  public  accounts,  199. 


Bagehot:  English  Constitution,  re- 
ferred to  or  quoted,  5,  14,  37,  57,  58, 
67,  70,  71,  72,  74,  82,  85,  428, 434,  436, 
478;  advocates  the  Cabinet  system, 
474 ;  fears  democracy,  475 ;  his  work 
discussed,  475,  476. 

Balances  and  checks,  ch.  iii. 

Balfour,  Mr.  Arthur,  77,  78,  83. 

Baptists  and  the  growth  of  democracy, 
288. 

Barons :  restrained  by  Crown,  152 ;  and 
John,  159  et  seq. 

Bartholomew,  Massacre  of,  236. 

Bates  case,  261. 

Beaconsfield,  73. 

Becket,  Thomas  k,  and  Henry  II.,  150- 
152. 

Bench,  Government  and  Opposition, 
26. 

Bentham,  37. 

Bible:  reading,  and  democracy,  288 j 


621 


522 


IKDEX 


effect  of,  on  English  people,  284; 
teaching  and  monarchy,  289 ;  in  the 
parliamentary  debate,  274. 

Bills,  Government,  see  Legislation. 

Bills  of  Rights  in  Constitution,  94. 

Bishops :  rebel  at  declaration  of  indul- 
gence, 314,  315;  trial  of,  315,  316; 
and  lower  clergy,  differ  in  politics, 
276. 

Black  death,  effects  of,  186. 

Black  Prince,  187. 

Blackstone,  quoted  or  referred  to,  13, 
457,  459,  473. 

Bloody  Assize,  315. 

Board  of  Trade,  87. 

Borgeaud,  Rise  of  Modern  Democracy, 
referred  to,  287,  455. 

Bolingbroke,  362,  382. 

Book,  England  the  land  of  a,  249. 

Boroughs:  manipulated  for  election 
purposes,  357;  abolition  of  rotten, 
425. 

Brand,  403. 

Braybrooke's,  Lord,  edition  of  Pepys' 
Diary,  295. 

Bribery  in  Parliament  elections,  and 
Walpole,  357. 

Bright,  83. 

Brougham:  409;  agitates  against  the 
power  of  the  Crown,  427 ;  and  Will- 
iam IV.,  428. 

Bryce,  referred  to,  13. 

Budget  and  the  Cabinet,  30,  31. 

Burke:  128,  394,  411,  420;  quoted,  426, 
473 ;  and  the  Constitution,  ch.  xlviii ; 
and  the  contract  theory  of  govern- 
ment, 467-469 ;  and  the  French  Rev- 
olution, 465,  466;  and  the  people, 
469;  on  popular  interference  with 
the  legislature,  464;  and  reform, 
422;  and  the  Revolution  of  1688, 
432. 

Burnet,  Bishop,  quoted,  321,  452,  453. 

Business :  conduct  of,  and  the  Cabinet, 
28,  29;  and  the  Monarch,  66  et  seq. 

Bute,  Lord,  383,  384. 


Cabal,  304,  306. 

Cabinet:  in  Anne's  reign,  ch.  xxxv; 
five  acts  in  its  formation,  22, 23,  359- 
364;  and  the  Act  of  Settlement,  324- 


326 ;  the  beginnings  of,  304 ;  and  the 
conduct  of  business,  28,  29 ;  defined, 
20;  dissolution  of,  20;  double,  of 
George  IIL,  426;  and  the  House  of 
Commons,  ch.  ii;  and  the  Crown, 
under  the  earlier  and  later  Hano- 
verian kings,  429,  430,  and  after 
1832,  426  et  seq.;  dictates  to  William 
IV.,  428;  divisions  in,  411,  412; 
formation  of,  20  et  seq. ;  and  for- 
eign affairs  in  George  III.,  394,  395; 
and  George  I.,  348,  .'^49;  and  George 
III.,  385,  390-397  ;  George  III.'s  com- 
pared with  those  of  Walpole,  402, 
403 ;  and  George  IV.,  ch.  xli ;  and 
King  in  conflict,  401 ;  King  and  leg- 
islation, 27,  28,  405;  legislative  and 
executive  duties,  83,  84 ;  and  House 
of  Lords,  26;  meetings  of,  82,  83; 
modern,  goes  back  only  to  1832,  338 ; 
origin  of,  ch.  xxxiv;  and  party  pol- 
icy, 83;  and  people,  433-435;  and 
Pitt,  ch.  xl ;  and  political  parties, 
328 ;  powers  of,  3,  4;  v.  the  presiden- 
tial system,  474;  and  the  preroga- 
tive, 433;  and  Privy  Council,  87; 
representation  in,  78-80;  resigna- 
tion of,  20,  29;  not  established  by 
Revolution  of  1688,  320;  and  the 
royal  household,  69,  407,  408,  436; 
and  the  Sovereign,  43(5,  437;  and 
spoils,  411-^14;  and  Walpole,  ch. 
XXX  vi. 

Cade,  Jack,  insurrection,  200. 

Canning,  408,  411,  412. 

Canterbury,  Archbishop  of,  40. 

Carlyle,  Thomas,  and  Cromwell,  293. 

Caroline,  Queen,  and  George  IV.,  408, 
409. 

Cartwright,  leader  of  Presbyterians, 
276. 

Catholic  Emancipation:  399;  and 
George  III.,  400,  401;  and  George 
IV.,  408. 

Catholic  Religion  and  the  Pretender, 
348. 

Catholics,  removal  of  Disabilities,  395, 
396. 

Cavaliers:  297,  306,  307;  control  the 
restored  Parliament,  301. 

Chamberlain,  Joseph,  77. 

Chancellor,  Lord,  56. 

Chancery,  Court  of,  99, 194. 


I 


INDEX 


523 


Charles  I. :  quoted,  291 ;  compelled  to 
redress  grievances,  291 ;  correctness 
of  personal  life,  278;  executed,  29(5; 
marries  Infanta  of  Spain,  277;  and 
Parliament,  282;  his  measures  to 
over-awe  Long  Parliament,  292 ;  and 
Scotland,  281;  overcome  by  Scotch 
Presbyterians,  286. 

Charles  II.:  an  attempt  to  force  his 
hand,  309;  and  the  courts,  310;  dis- 
solves Parliament,  308,  309;  and 
King  of  France,  308 ;  follows  line  of 
least  resistance,  301 ;  learns  nothing 
from  career  of  Charles  I.,  300  et 
seq.;  restored,  299;  and  Romanism, 
308 ;  Roman  Catholics,  304. 

Charta,  Magna,  and  John,  158  et  seq. 

Charter  of  Plymouth,  450;  of  Rhode 
Island,  lb. 

Charters  granted  to  towns,  446. 

Chartist  movement,  437. 

Checks  and  balances,  ch.  iii. 

Chesterfield,  370,  371,  429. 

Chief  Justice,  99. 

Christianity  and  English  Unity,  482, 
483. 

Church:  103  et  seq.;  and  the  Consti- 
tution in  early  times,  127;  and 
courts,  104,  105,  122;  and  Crown, 
121,  122,  126;  the  Established 
Church  and  the  Stuarts,  250,  251; 
and  Henry  II.,  149-152;  and  John, 
160  et  seq. ;  and  King  refers  to  Bi- 
ble for  absolute  authority,  274 ;  and 
land,  137,  138 ;  and  House  of  Lords, 
40,  103;  power  of  and  religious 
teachings,  172;  and  property,  197, 
198;  and  disestablishment,  105;  in 
America,  105;  relation  of,  to  mon- 
archy, 255;  representative  of  the 
people,  227;  and  William  II.,  140, 
141. 

Civil  Cases,  trial  of,  100. 

Civil  Courts  and  Church  discipline, 
104,  105. 

Civil  service  reform  and  elections,  438, 
439. 

Civil  War:  292;  fear  of,  312. 

Clarendon,  Constitutions  of,  151. 

Clarendon,  Duke  of:  driven  from  of- 
fice, 304 ;  quoted,  301. 

Classes:  and  the  King,  120,  121;  in 
Norman  period,  131,  132. 


Clergy :  agitate  for  retrenchment,  422 ; 
and  crown,  121,  122;  in  Elizabeth's 
reign,  244,  245 ;  and  laity,  180,  187 ; 
and  taxes,  179. 

Clifford,  305. 

Close  corporations  and  municipalities, 
443. 

Coalition  ministry:  387,  388;  and  po- 
litical parties,  483-485. 

Coercion  of  the  Lords,  51-53,  109, 110, 
425,  434. 

Coke,  Sir  Edward:  458;  opposes 
James  I.,  262  ;  quoted,  272. 

Colonies,  their  relation  to  England, 
378,  379. 

Commentaries,  Blackstone's,  referred 
to  and  quoted,  457-459. 

Commerce,  laws  regulating,  205. 

Commissions,  royal,  origin  of,  222. 

Common  Council,  340. 

Common  law  and  personal  liberty, 
193. 

Commons,  House  of:  beginning  of, 
182,  183 ;  and  common  people  distin- 
guished, 302;  freedom  of  speech  in, 
240;  meets  separately  from  the 
Lords,  339;  and  Pitt  the  younger, 
389 ;  right  to  exclude  outsiders,  224, 
225;  their  theory  of  parliamentary 
powers,  253,  254;  and  their  privi- 
leges, 231 ;  uses  of,  by  Henry  VIII., 
229;  Walpole  influences  the  election 
of  members,  357. 

Commons,  risings  of,  252. 

Commonwealth:  and  the  Rebellion, 
ch.  xxvi ;  results  of,  294  et  seq. 

Commune  Concilium  and  House  of 
Lords,  102. 

Composition  of  political  parties,  chs. 
xxxii  and  xlii. 

Conflict:  of  Cabinet  and  King,  404; 
of  common  law  and  the  understand- 
ings, 110;  of  law  and  custom  of  the 
English  Constitution,  57  et  seq. 

Conservative  :  Cabinet,  25,  26  ;  party, 
origin  of,  435. 

Constituencies  and  the  Cabinet,  360, 
361. 

Constitution :  and  Burke,  ch.  xlviii ; 
character  of  English,  34,  35;  and 
contentions,  110;  defined,  105;  ele- 
ments of,  in  Tudor  period,  243-246; 
growth  of,  112,  113;  and  local  gov- 


524 


INDEX 


ernment,  124,  441-448;  meaning  of, 
110-112;  methods  of  changing,  in 
America  and  England,  65,  66;  mod- 
ern, not  derived  from  Revolution  of 
1688,  319,  320;  and  the  new  learn- 
ing, 241;  origin  of  the  term,  ch. 
xlvii  ;  recent  expositors  of,  ch. 
xlix;  a  sentimental  bond  of  union, 
461. 

Constitutional  and  legal  powers  of  the 
Queen,  56  et  seq. 

Constitutional  liberty  and  wealth,  205, 
206. 

Contention  and  the  Constitution,  110, 
133  et  seq. 

Continuity  of  parties,  307. 

Contract  theory :  456 ;  of  government, 
467-469. 

Contributions,  voluntary,  their  exac- 
tion, 225. 

Controversies  and  law,  158, 159. 

Conventicle  Act,  303. 

Corn  Law  agitation,  438. 

Corporation  Act  abolished,  416. 

Corporations,  municipal,  and  parlia- 
mentary elections,  439,  440. 

Corresponding  societies,  422. 

Council:  common  and  ordinary,  340; 
and  Henry  II.,  150,  151;  and  Henry 
III.,  170;  and  King  and  Parliament, 
194 ;  in  the  Tudor  period,  245,  246 ; 
Privy,  86-88,  341;  and  representa- 
tion, 153,  154;  and  royal  rule,  ch. 
xii ;  scheme  of  Sir  William  Tem- 
ple's, 342,  343;  and  William  II.,  140, 
141,  144. 

County:  Councils,  101,  444;  govern- 
ment and  magistrates,  444,  445; 
judges,  100. 

Court:  of  High  Commission,  263;  of 
Record,  the  House  of  Commons,  265 ; 
records  and  personal  liberty,  232; 
of  Star  Chamber,  216. 

Courts :  89  et  seq. ;  American  and 
English  compared,  92,  93;  Church, 
104,  122;  and  Charles  II.,  310;  and 
the  English  Constitution,  93-96; 
used  to  restrain  faction,  250;  under 
James  I.,  naturalize  Scotch  subjects, 
262;  and  legislature,  95;  member- 
ship of,  96  et  seq. ;  and  local  gov- 
ernment, 443,  444 ;  military,  263  ; 
and  order,  205;    and  private  citi- 


zens, 93-95;  and  Privy  Council,  97, 
98 ;  and  early  Stuarts,  ch.  xxii. 

Coxe's  Life  of  Walpole,  referred  to, 
364. 

Creasy,  referred  to,  128. 

Creation  of  peers,  51-53. 

Criticism  and  impeachment  of  minis- 
ters, 372. 

Cromwell,  Oliver:  287-290;  and  Car- 
lyle,  293 ;  characterized  by  Claren- 
don, 301 ;  and  his  men,  294. 

Crowell,  Thomas,  221. 

Crown :  ch.  v ;  the  centre  of  legal 
forms  and  acts,  75 ;  yields  to  advice 
of  Cabinet,  429 ;  and  Cabinet  under 
earlier  and  later  Hanoverians  com- 
pared, 429,  430 ;  deprived  of  veto, 
404,  405;  and  Church,  121,  122;  and 
classes,  120;  and  clergy,  121,  122; 
and  Commons,  ch.  xxi ;  and  the  peo- 
ple, 122, 123  ;  meaning  of,  in  Norman 
period,  125;  and  Parliament,  17,  ch. 
xiv,  213  et  seq. ;  and  parliamentary 
title,  317-319 ;  strengthened  by  wars, 
128,  129 ;  and  tenants,  135,  136. 

Curia  Regis:  144,  156;  organization 
of,  146,  149. 

Custom  and  the  English  Constitution, 
14,  417. 

Customs,  popular  and  royal  power, 
123. 


Danby,  306-308. 

Danegeld,  136,  137. 

Debate,  rules  of,  in  House  of  Com- 
mons, 38,  39. 

Decline  of  local  government,  443,  444. 

Defender  of  the  Faith,  228. 

Definition  of  powers  and  the  Constitu- 
tions, 15. 

Democracy:  ancient,  mediaeval,  and 
modern,  208-212;  Bagehot  fears, 
475;  beginnings  of  its  true  power, 
430;  Burke  on,  465-467 ;  dreaded  by 
Walpole,  3G8;  growth  of,  431;  an 
ideal,  284;  and  Presbyterianism, 
288;  and  toleration,  ch.  xxv;  and 
toleration  coming  from  religious 
union,  286. 

Democratic  ideas,  spread  of,  367; 
character  of  the  prei'ogative,  62,  63. 

Democrats,  term  before  1832,  430,  431. 


INDEX 


526 


Desirability  of  membership  in  Lords 

and  Commons,  44. 
Devonshire,  Duke  of;  42;  quoted,  33. 
Dicey,  referred  to  or  quoted,  12,  47, 

50,  51,  53,  60,  62,  63,  71,  75,  94,  409, 

472,  473. 
Dillon,  39. 

Discipline,  Church,  104,  105. 
Discontent  and  reform,  421. 
Dispensation,  legislation  by,  340,  341. 
Disraeli,  22. 
Dissenters:    333;    laws  against,  334; 

meaning  of,  297 ;  toleration  of,  308 ; 

as  Whigs,  415. 
Dissenting    church,    government    of, 

104. 
Distribution  of  powers,  108. 
Divine  right:   271,  312;  notion  killed 

by  Revolution  of  1688,  318;  theory 

of,  258 ;  Tory  theory  of,  310 ;  Whig 

theory  of,  393. 
Division  in  Cabinet,  82,  83. 
Divorce  court,  99. 
Double  cabinet  of  George  III.,  426. 
Dunning  resolution,  409. 
Durham,  Bishop  of,  40. 

E 

Economic  changes,  185,  241,  416. 

Edinburgh  Revieio,  quoted,  33,  36. 

Edward  Confessor's  laws,  effect  on 
Englishmen,  481. 

Edward  I. :  173  et  seq  ;  and  the  classes, 
180, 181 ;  and  Parliament,  177  et  seq; 
and  towns,  442,  443. 

Edward  II.,  182,  183. 

Edward  III. :  183  et  seq ;  and  Parlia- 
ment, 184  et  seq. 

Elections:  and  the  civil  service,  438; 
and  municipal  corporations,  439, 
440. 

Electoral  privileges,  restriction  of, 
443. 

Electorate  and  Parliament,  34,  50. 

Elizabeth:  236  et  seq;  character  of, 
238,239;  and  Church,  244,  245;  eco- 
nomic conditions  under,  241 ;  and 
Lords,  243-245;  and  Parliament, 
239,  240;  and  Protestantism,  236- 
238;  resists  extremists  in  religion, 
275;  compared  with  Walpole,  366, 
367. 


Emancipation  of  the  Catholics  by  Pitt, 
395,  3iJ6. 

Enclosures,  222,  252. 

Encroachments  and  constitution,  15, 
109. 

Enforcement  of  law,  and  the  public 
mind,  36,  37. 

England  the  land  of  a  book,  249. 

English  constitutions :  compared  with 
American,  34,  35,  64-66;  based  on 
democracy,  284  et  seq ;  and  the  pub- 
lic mind,  36, 37 ;  and  understandings, 
57  et  seq. 

English  and  French  possessions,  138, 
139. 

English  law :  and  checks  and  balances, 
45 ;  and  supremacy  of  Commons,  34. 

English :  and  Normans,  131, 481 ;  unity 
of,  ch.  1;  unity  and  Christianity, 
482,  483. 

Established  Church :  opposes  extremes, 
275 ;  and  Puritans,  251 ;  government 
of,  104  et  seq ;  and  Parliament,  104. 

Exactions:  of  Edward  I.,  179,  180;  of 
Henry  VII.,  216,  217. 

Excise,  Bill  of,  173,  377. 

Exclusion  Bill,  310. 

Executive,  see  Cabinet. 


Factions :  Lancastrians  represent,  196 ; 
make  use  of  institutions,  194,  195; 
and  modern  parties,  198. 

False  history,  use  of,  257,  258. 

Feudalism:  in  Norman  times,  135; 
and  William  I.,  120,  121. 

Finance  and  Cabinet,  29-31. 

Financial  administration  of  Edward 
I.,  175,  176. 

Five  acts  in  choice  of  executive,  22- 
25. 

Five  Mile  Act,  303. 

Fortescue,  quoted,  258. 

Forty-shilling  franchise,  200. 

Fox,  387,  393,  394,  399,  411,  414. 

Frame  of  Government  of  Pennsylva- 
nia, 450. 

France,  King  of,  and  Charles  II.,  308. 

Franchise:  and  Chartist  movement, 
437,  438 ;  extension  of,  and  Cabinet, 
435 ;  given  to  towns  and  counties  by 
Reform  of  1832,  425. 


526 


INDEX 


Freedom  from  arrest  of  members  of 
Commons,  231, 

Freedom  of  speech,  94. 

Freeman,  Edward  A.,  referred  to,  16, 
33,  119,  120,  144,  158,  200,  339. 

French :  example  tends  to  unify  Eng- 
lish life,  482 ;  Revolution  and  Burke, 
465 ;  Revolution  and  English  politics, 
419. 

"  Friends,  King's,"  399,  400,  402,  407, 
426,  463. 

Friends  of  the  People,  Society  of, 
422. 

Froude,  quoted,  302. 

Fyrd :  and  the  Crown,  130 ;  and  Henry 
II.,  155. 


Gardner,  referred  to  or  quoted,  141, 
165,  173,  179,  193,  331. 

Gentlemen's  Parliament,  302. 

George  I.  and  the  Cabinet,  348,  349. 

George  II.  and  William  III.  and  their 
ministers,  371. 

George  III.  :  383  et  seq ;  and  double 
cabinet,  426;  controlling  his  cabi- 
nets, 391-393 ;  and  Catholic  Emanci- 
pation, 400,  401 ;  claimed  exclusive 
control  of  army,  400 ;  dissolves  Par- 
liament, 405 ;  forces  Cabinet  to  re- 
sign, 396,  .397 ;  insane,  393,  394,  405 ; 
and  Irish  Catholics,  396 ;  insists  on 
taking  part  in  all  affairs  of  state, 
395 ;  overawes  House  of  Lords,  390 ; 
and  Privy  Councillors,  404;  pro- 
motes party  factions,  384,  387 ;  the 
real  rebel  in  1776,  379,  380. 

George  IV. :  and  Cabinet,  ch.  xli ; 
and  Catholic  Emancipation,  408; 
and  Queen  Caroline,  408. 

Gladstone:  22,  24-26;  quoted  in  note, 
36,  37,  43,  73,  75,  83,  84,  366. 

Gloucester,  Duke  of,  and  Richard  II., 
189. 

Gneist,  referred  to,  133,  156,  175, 178. 

Good  Parliament,  187. 

Goschen,  George  J.,  20,  77. 

Government :  contract  theory  of,  467- 
469 ;  by  divided  Cabinet,  ch.  xxxix ; 
without  King  attempted,  296;  and 
the  people,  432 ;  Puritan  theory  of, 
289,  290 ;  theories  of,  introduced  by 
Stuarts  into  English  politics,  253. 


Government  bills:  278;  and  amend- 
ments, 27. 

Grand  Remonstrance,  292. 

Granting  supplies  and  the  motives  of 
absolute  sovereignty,  270,  271. 

Granville,  370,  371. 

Greek  democracy,  209. 

Green,  referred  to  or  quoted,  120,  179, 
193,  201,  249,  254. 

Grenville,  399,  400. 

Grey,  Earl,  407. 

Grievances,  redress  of,  and  voting 
supplies,  269. 

Guilds :  207 ;  and  Government,  129. 


Habeas  Corpus  Act,  108,  309. 

Hallam,  referred  to,  218,  276,  473. 

Hanover,  House  of,  see  the  Georges. 

Hanoverians,  early,  hold  their  power 
through  fear  of  war,  352. 

Harmony:  between  Executive  and 
Commons  introduced  by  Walpole, 
356;  national,  and  the  Constitution, 
478,  479. 

Harrington,  321,  451,  454. 

Hearn,  referred  to,  37,  50,  52,  54,  83, 
86,  387,  449. 

Henry  I.  and  his  work,  145  et  seq. 

Henry  II. :  and  barons,  148 ;  and  judi- 
ciary, 149;  and  local  government, 
442 ;  and  taxes,  15. 

Henry  III.,  169  et  seq. 

Henry  IV.,  198,  199. 

Henry  VII. :  ch.  xviii ;  chief  con- 
stable, 215. 

Henry  VIII. :  Defender  of  the  Faith, 
228;  divorce  and  the  Pope,  228; 
policy  contrasted  with  Elizabeth's, 
225,  226;  and  the  people,  228,  229; 
power  limited  by  the  Commons,  225 ; 
and  the  Reformation,  ch.  xix;  and 
Star  Chamber,  229. 

Hicks-Beach,  Michael,  77,  78. 

High  Commission,  Court  of,  263. 

High  Court  of  Justice,  99. 

Hill,  Mrs.  Birkbeck,  referred  to, 
287. 

History :  read  backwards,  258 ;  gener- 
ally a  story  of  strife,  478;  uS'e  of, 
5,  6;  need  not  be  true  to  be  useful, 
257. 


INDEX 


527 


Hobbes,  454,  456. 

Home  Rule  and  the  Liberty  Party, 
24-26. 

Honest  men  ol  Cromwell,  293,  294. 

House  of  Commons :  and  Cabinet,  ch. 
ii;  demands  release  of  imprisoned 
members,  265;  and  local  govern- 
ment, 185;  becomes  the  English 
Pope,  304 ;  and  origination  of  reve- 
nue bills,  199;  and  selection  of  the 
Cabinet,  21;  supremacy  of,  33;  and 
taxation,  53. 

Household  of  the  Monarch  and  the 
Cabinet,  407,  408,  436. 

House  of  Lords :  and  Cabinet  legisla- 
tion, 48  ;  coercion  of,  51-53,  109, 110, 
425, 434 ;  contrast  between,  and  Com- 
mons, 45-47 ;  sessions  of,  43. 

Hume,  referred  to,  218. 

Hyde  Park  demonstrations  and  legis- 
lation, 30. 


Impeachment  and  criticism  of  minis- 
ter, 372 ;  of  officers,  265. 

Import  duties,  the  right  of  levying, 
261,  262. 

Independents,  288,  289. 

Individual  rights  in  Norman  period, 
117. 

Indulgence,  Declaration  of,  314. 

Industrial:  conditions  in  Elizabeth's 
reign,  241 ;  revolution,  416. 

inferiors  responsible  for  their  acts, 
260. 

"  Influence,"  Burke  regards,  as  the 
source  of  political  danger,  463. 

Influencing  Cabinet  action,  30. 

Initiative  of  the  Sovereign,  60. 

Insanity  of  George  III.,  393,  394, 
405. 

Institutions :  origins  of,  indefinite,  338, 
339 ;  tools  in  hands  of  factions,  194, 
195. 

Instrument  of  Cromwell,  341. 

Insurrection  in  reign  of  Henry  VIH., 
223. 

Ireland  and  Pitt  (the  younger) ,  395. 

Irish  Catholics:  and  George  III.,  395, 
3C*6 ;  members  and  rules  of  the  Com- 
mons, 38,  39;  parties  and  the  Cabi- 
net, 24 ;  Peers,  41. 


Jacobites  and  Tories,  333,  334. 

James  I. :  conciliates  Spain,  277 ;  fa- 
vours conservatism  in  Church,  276, 
277 ;  and  the  legal  notion  of  govern- 
ment, 256 ;  and  Parliament,  256 ;  and 
Presbyterian  Church,  254 ;  and  the- 
ory of  government,  254;  and  toler- 
ation of  Romanists,  277. 

James  II.:  ch.  xxix,  311;  and  the 
bishops,  314 ;  lacks  common  sense, 
312  et  seq.;  his  flight,  316 ;  and  Cath- 
olics, 313 ;  heir  born  to,  316 ;  and  the 
judiciary,  315;  and  Test  Act,  313; 
and  voting  districts,  314. 

Jefferson,  Thomas,  146,  431,  432. 

Jeffrys,  315. 

John:  and  barons,  159  et  seq.;  and 
Church,  160  et  seq. 

Judges:  county,  100;  tenure  made 
permanent,  324. 

Judicial  committee  of  Privy  Council,  99. 

Judiciary:  and  the  administration, 
90,  91 ;  and  Edward  L,  174,  175 ;  and 
Henry  IL,  149  ;  and  James  IL,  315 ; 
and  personal  liberty,  193. 

Junto  and  the  Cabinet,  338,  344,  345. 

Jury  system :  and  Henry  II. ,  156 ;  and 
representation,  129. 

Justices  and  counties,  156. 


Kent:  petitioners  arrested,  336;  re- 
bellion of,  188. 

King:  and  Cabinet,  400,  401,  405;  and 
classes,  120 ;  his  court,  144 ;  subject 
to  Parliament,  300 ;  crowned  by  Par- 
liament, 259 ;  "  King's  friends,"  399, 
426,  463;  and  local  governments,  441, 
442 ;  loses  to  Cabinet,  415 ;  Magna 
Charta  authorizes  war  upon,  163; 
must  act  through  ministry,  404,405; 
ministers  responsible  for  his  acts, 
400,  401 ;  V.  Parliament,  ch.  xxiii ; 
power  of,  in  Norman  period,  113  et 
seq. ;  and  tenants-in-chief,  135 ;  rep- 
resents unity  of  the  nation,  264 ;  his 
will  and  the  use  of  the  prerogative, 
409,  410. 

Knights  of  the  shire  and  Parliament, 
184. 

Knox  and  James  I.,  254,  255. 


528 


INDEX 


Laity  and  clergy,  186,  187. 

Lancaster,  Duke  of :  and  Edward  III., 
187  ;  and  Richard  II.,  190. 

Lancastrians:  and  Lollards,  192;  rep- 
resent a  faction,  196. 

Land:  bestowal  of,  and  Crown,  120; 
and  Church,  137, 138 ;  and  the  people, 
128. 

Landed  interests  in  Temple's  scheme, 
342. 

Land-owners  are  Whigs,  328,  329. 

Land-ownership,  a  parliamentary  qual- 
ification, 348. 

Langton,  Stephen,  160,  161. 

Lansdowne,  Marquis  of,  77. 

Laud:  278;  his  attempt  to  introduce 
English  Prayer  Book  into  Scotland, 
280,  281 ;  imprisoned,  291. 

Law,  popular  respect  for,  in  Tudor 
period,  230. 

Law-abiding,  how  promoted  among 
the  people,  283. 

Laws :  and  controversies,  158, 159 ;  the 
sovereign,  272. 

Leaders :  of  Opposition,  26  ;  party,  362. 

Leadership,  sources  of,  226. 

Learning  and  the  Constitution,  241. 

Lecky,  referred  to,  415,  449,  453,  476. 

Legal  and  constitutional  powers  of  the 
Queen,  36  et  seq. 

Legislation:  King  and  the  Cabinet, 
405 ;  Cabinet  and  non-Cabinet,  27, 28; 
by  proclamation  and  dispensation, 
340,  341 ;  by  liberal  and  conservative 
cabinets,  48,  50. 

Legislature  and  courts,  81,  93,  95. 

Liberal  party,  origin  of,  435. 

Liberal  Unionists  and  Cabinet,  25. 

Liberty:  meaning  of,  165,  166;  pro- 
moted by  strife  among  ruling  classes, 
368,  369;  of  subject,  94,  95. 

Life  Peers,  52. 

Literature  and  English  unity,  484. 

Liverpool,  Lord,  407. 

Liveried  companies :  207 ;  and  Henry 
VII.,  216. 

Local  courts:  and  King's  justice,  157; 
and  tenants,  123. 

Local  government:  and  the  Constitu- 
tion, 124,  441,  448;  in  time  of  Lan- 
castrians, 191,  192. 


Locke,  John:  455,  456,  459;  and  the 
contract  theory,  468. 

Lollards :  and  Lancastrians,  192 ;  sup- 
pressed, 286. 

London,  Bishop  of,  46. 

London  and  Charles  XL's  Quo  War- 
ranto, 310,  311. 

Long  Parliament  and  Charles  I.,  291. 

Lord  Chancellor,  44,  96-98. 

Lords :  appellant,  189 ;  of  the  Articles, 
280. 

Lords,  House  of:  ch.  iv;  and  the 
courts,  97;  overawed  by  George  III., 
390;  and  the  nation,  433,  434;  op- 
position of,  to  reform,  433;  posi- 
tion in  reign  of  Elizabeth,  243,  244 ; 
quorum  in,  43;  refusal  to  concur 
with  the  Commons,  50 ;  schemes  for 
reforming,  54,  55;  subject  to  Com- 
mons, 26,  27. 

Louis  XIV.  and  the  Stuarts,  318,  452. 


M 

Macaulay,  quoted,  423,  424. 

Madison  Papers,  referred  to,  80. 

Magdalen  College  and  James,  314. 

Magistrates  and  county  government, 
444,445. 

Magna  Charta:  158  etseq.;  the  Amer- 
icans' interest  in,  273 ;  character  of 
contents,  164 ;  vagueness  of,  164, 165. 

Magnum  Concilium,  144. 

Maine,  Sir  Henry,  476. 

Marlborough,  Duke  of,  346-348. 

Martyrs  at  the  hands  of  the  Stuarts, 
278. 

Mary  and  William,  317,  318. 

Mary  of  Scotland,  236,  237. 

Mary,  Queen,  resisted  by  courts  and 
Parliament,  234,  235. 

Masses:  beginning  of  their  political 
power,  201 ;  and  courts,  205. 

May,  referred  to,  52. 

Medley,  referred  to,  123,  124, 126,  142, 
156,  165,  172,  173,  184,  193,  194. 

Meeting  of  Parliament,  times  of,  335. 

Membership  of  House  of  Lords,  40-44. 

Methods  of  changing  English  and 
American  constitutions,  65,  66. 

Middle-class  elements,  330. 

Military:  courts,  263;  organization, 
192. 


INDEX 


629 


Mill,  J.  S.,  referred  to,  36. 

Minister :  appointment  of  and  Provis- 
ions of  Oxford,  172;  and  acts  of  the 
King,  266, 404,  405 ;  non-Cabinet,  79 ; 
criticism  and  responsibility,  372 ; 
judicial  powers  and  responsibility 
of,  266 ;  transfer  of  choice  of,  from 
Monarch  to  nation,  366. 

Ministry:  defined,  20;  composition  of , 
77-80;  must  govern  by  parliamen- 
tary agencies,  71,  72;  must  inform 
Sovereign,  71,  72.    See  also  Cabinet. 

Minute  of  the  Cabinet  to  George  III., 
401. 

Mob:  the  English,  431;  and  Wilkes, 
418. 

Model  Parliament,  179. 

Monarch:  not  discussed,  73;  and  the 
efficient  executive  distinguished, 
354;  and  government  business,  66 
et  seq. ;  influence  of  on  ministry,  70 ; 
relation  to  advisers,  67 ;  relation  to 
Church,  255;  restricted  by  Tories, 
323  et  seq. ;  right  to  be  informed, 
68,  69,  70;  sentimental  head  of 
nation,  74. 

Money,  use  of,  by  Walpole,  356. 

Monmouth,  309,  Oil,  316. 

Montesquieu,  458. 

Montfort,  Simon  de,  and  Parliament, 
173. 

More,  Sir  Thomas,  referred  to  or 
quoted,  221,  222,  224,  229. 

Morley,  John,  quoted,  1,  3,  68,  69,  365. 

Morris,  Gouverneur,  quoted,  80. 

Municipal:  corporations  and  politi- 
cal parties,  447,  448;  reform,  439, 
440. 

Murder,  judicial,  of  Catholics,  310. 

Mutiny  Act  and  parliamentary  con- 
trol, 335. 

N 

Nation:  growth  of  the  English,  118, 
119 ;  represented  by  Parliament,  215. 

National  Assembly :  141-144 ;  and  the 
Crown,  134 ;  and  Parliament,  339. 

National  characteristics  of  English- 
men accounted  for,  207,  208. 

Naturalization  of  Scottish  subjects  by 
courts,  262. 

Nature,  state  of,  455,  456. 

Newcastle,  Duke  of,  373. 

2m 


Nobility:  English  and  French,  196, 
197;  in  the  Norman  period,  125; 
weakened  by  faction,  ch.  xvi;  and 
financial  policy  of  Henry  VII.,  218; 
and  the  Stuarts,  251. 

Non-Cabinet  Legislation,  27,  28. 

Non-conformists,  see  Dissenters. 

Non-resistance,  oath  of,  303. 

Norman  kings,  power  of,  118  et  seq. 

Normans  and  English,  123,  131,  481. 

North,  Lord,  385,  386,  410,  413. 


Gates,  Titus,  308. 

Obstruction  of  parliamentary  pro- 
ceedings, 39. 

Officers  excluded  from  Parliament, 
325. 

Oligarchies,  local,  and  local  govern- 
ments, 446. 

Opinion  and  political  parties,  307, 435. 

Opponents  of  Stuarts  regarded  as  mar- 
tyrs, 277,  278. 

Opposition,  leaders  of,  in  Parliament, 
26;  of  Lords,  50;  of  Lords,  how 
overcome,  62. 

Oratory  and  English  unity,  484. 

Ordainers,  Lords,  182,  183. 

Orders  in  Council,  87,  341. 

Ordinary  Council,  340.  See  also  Com- 
mon Council. 

Organization  and  the  people,  129. 

Origination  of  government  bills,  53. 

Oxen,  Tudors  and  Stuarts  compared 
to,  249,  250. 

Oxford :  Charles  II.  summons  Parlia- 
ment to,  310 ;  Provisions  and  Parlia- 
ment of.  171,  172. 


Packing  Parliaments,  358,  443. 

Paine,  Thomas,  193. 

Palmerston,  68,  476. 

Parishes,  104. 

Parliament :  absolute  during  William 
III.'s  reign,  .336,  337;  as  an  agent 
of  faction,  ch,  xv ;  and  American 
colonists,  378,  379;  and  Charles  I., 
282;  and  Council  in  Tudor  period, 
245,  246 ;  and  courts,  95,  96;  becomes 
highest  court,  231,  232;  and  Crown, 


\BRAi<Y 


OF  THE 


OF 
•ALIFO 


^^ 


530 


INDEX 


18;  and  Edward  III.,  184  et  seq. ; 
and  the  electorate,  19;  and  Eliza- 
beth, 239,  240 ;  Exclusion  of  officers 
from,  325;  formation  of,  177  et 
seq. ;  the  Good,  187 ;  and  the  gov- 
ernment of  the  Church,  104;  and 
Henry  III.,  173;  tool  of  Henry 
VIII.,  231 ;  subject  to  King,  300 ;  and 
House  of  Lords,  18 ;  and  Lords  Or- 
dainers,  182, 183 ;  meanings  of  Par- 
liament, 17 ;  resists  acts  of  Mary, 
235 ;  meets  in  separate  houses,  339 ; 
and  de  Montfort,  173;  symbol  of 
national  unity,  242;  nature  and 
powers  of,  3,  4;  false  notions  of 
ancient  powers,  57 ;  of  Oxford,  171 ; 
convened  at  Oxford  by  Charles  II., 
310;  and  Pitt's  dismissal,  397;  the 
means  of  resisting  the  King,  185; 
of  the  Restoration,  301 ;  and  Rich- 
ard II.,  189  et  seq.;  supreme,  33; 
theory  of,  held  by  Commons,  253, 
254;  and  succession  to  the  Crown, 
18,  IM,  317;  and  the  Tudors,  213 
et  seq.,  230,  231;  is  undemocratic, 
367. 

Parties:  in  Queen  Anne's  reign,  346 
et  seq. ;  beginnings  of,  ch.  xxviii ; 
and  the  Cabinet,  24,  328,  389,  390; 
and  the  King,  2o6 ;  modern  parties 
and  ancient  factions,  198 ;  Papal  and 
Protestant,  306,  307  ;  and  the  people, 
417 ;  contest  for  privilege,  330,  331 ; 
represents  interests  of  the  nation, 
307. 

Party:  leadership  and  Premiership, 
24;  leaders  in  time  of  AValpole,  3')2; 
strife  and  the  stability  of  the  Con- 
stitution, 479,  480. 

Paston  Letters,  referred  to,  193. 

Peasant's  social  position,  192. 

Peel,  Robert,  436. 

Peerage,  creation  of,  42. 

Peers:  creation  of,  by  house  of,  347; 
creation  of,  threatened,  1832,  425; 
power  to  create,  and  Walpole,  355 ;  in 
House  of  Commons,  42 ;  and  Lords, 
41,42;  trial  of,  185. 

Pelham,  370,  373. 

Penn,  William,  450. 

Pennsylvania,  Frame  of  Government 
of,  450. 

Pensions  and  Cabinets,  345. 


People:  Burke's  idea  of  the,  469;  and 
the  Cabinet,  360,  361,  433,  434,  435; 
and  the  Crown,  123;  and  Edward  I., 
180,  181 ;  and  the  Government,  127- 
129,  432;  and  the  land,  128;  and 
their  control  of  the  legislature, 
464 ;  and  the  parties,  417 ;  and  sov- 
ereignty, 18;  and  the  towns,  129; 
unrepresented,  ch.  xxxviii;  and  Wal- 
pole, 353,  361. 

Pepys'  Diary,  referred  to,  295. 

Percival,  403. 

Persecution,  Religious,  235. 

Personal  liberty :  and  English  Consti- 
tution, 94,  95;  and  the  judiciary, 
193 ;  and  court  record,  232. 

Perth,  Five  Articles  of,  280. 

Petition  of  Right,  271,  273. 

Petitioners,  309. 

Petitioners,  Kentish,  arrested,  336. 

Pike,  referred  to,  53. 

Pitt  (elder),  370,  371,  373,  382,  383, 
384,  429. 

Pitt  (younger) :  387  et  seq.,  466;  and 
the  Cabinet,  ch.  xl;  and  Catholic 
Emancipation,  399;  and  corruption, 
3i)8;  and  Ireland,  395;  and  reform, 
3f)2;  refuses  to  resign,  388,  389;  re- 
signs, 397  ;  reinstated,  399;  triumph 
of,  415. 

Plymouth,  charter  of,  450. 

Political    character  of    English,  207. 

Political  ideals,  285. 

Political  parties:  beginnings  of,  ch. 
xxviii ;  and  the  Cabinet,  24 ;  and  the 
coalition,  413-415;  composition,  ch. 
xxxii ;  previous  to  1832, ch. xlii ;  and 
public  opinion,  435;  and  religious 
controversy,  227. 

Poor  V.  rich,  419. 

Pope:  and  Henry  III.,  169,  170;  and 
John,  160,  161 ;  his  power  weak  in 
England,  237. 

Popery,  fear  of,  by  Puritans,  279. 

Popular:  agitation  suppres.sed,  423; 
movements  previous  to  18.32,  ch. 
xliii;  uprisings,  character  of,  283, 
284. 

Population  shifting  from  country  to 
town,  418,  419. 

Prerogative :  as  affecting  the  Cabinet 
and  the  Crown,  60-02,  409,  410; 
democratic  character  of,  62,  63;  and 


INDEX 


631 


James  II.,  314;  and  Walpole,  353, 

354. 
Presbyterianism :  and  Charles  I.,  286; 

and  James  I.,  254;  and  Puritanism, 

275,  276;  after  the  Restoration,  302, 

303. 
Press,  freedom  of,  how  brought  about, 

334,335. 
Pretender,  348,  374. 
Prime  Minister:   duties  of,  364,  365; 

power,  80 ;  selection  of  the  Cabinet, 

20,  21 ;  and  Walpole,  363-365. 
Prince:  Albert,  70;  of  Wales  regent, 

407. 
Private  bills,  28. 

Private    and    public    rights    distin- 
guished, 261,  262. 
Privileges :  of  the  Commons,  259 ;  par- 
ties contend  for,  up  to  Revolution 

1688,  331,  332. 
Privy  Council:  86-88,  341;    and  the 

courts,  97,  98 ;  and  foreigners,  324 ; 

and  methods  of  business,  324. 
Privy  Councillors  and  George  III.,  403, 

404. 
Probate  court,  99. 
Proclamation:    James   II. 's  declared 

void  by  Coke,  262,  263;  legislation 

by,  340,  341. 
Property  qualification  and  Chartism, 

437. 
Protestantism:  and  the  Constitution, 

chs.  xix  and  xx ;  and  Elizabeth,  238 

et  seq. 
Provincial  councils,  176,  177. 
Provisions  of  Oxford,  171. 
Prynne,  his  book  and  punishment,  278. 
Prynne,  William,  referred  to,  170. 
Public   demonstrations   and   Cabinet 

action,  30. 
Public  and  private  rights,  261,  262. 
Public  opinion :  and  political  parties, 

435;  and  Henry  II.,  162. 
Purchase  in  army  abolished  by  pre- 
rogative, 62,  and  Order  in  Council, 

341. 
Puritan :  meaning  of,  291 ;  theory  of 

government,  289,  290. 
Puritanism  and  Presbyterianism,  275, 

276. 
Puritans :  and  the  Established  Church, 

251,275;  hated,  302. 
Pym  and  the  tax-payers,  307. 


Quarter  sessions,  101,  443. 

Queen :  functions  of,  56,  57 ;  her  part 

in  forming  a  ministry,  22,  23,  72; 

responsibilities  of,  60 ;  social  duties, 

69,  70 ;  speech  written  by  ministers, 

58. 
Queen's  Bench,  99. 
Questioning  Cabinet  officers,  31. 
Quorum  of  House  of  Lords,  43. 
Quo  warranto  of  Charles  II.,  310. 


Rebellion  of  bishops  because  of  Dec- 
laration of  Indulgence,  314,  315. 

Rebellion  and  the  Commonwealth,  ch. 
xxvi. 

Referendum  and  the  Queen,  75. 

Reform  of  1832 :  and  coercion  of  House 
of  Lords,  51,  52;  ch.  xliv,  421;  in- 
evitable, 423,  424. 

Reform  of  civil  service,  438. 

Reformation  of  the  Lords,  54,  55. 

Reforms  of  Long  Parliament :  291, 292 ; 
continued  by  Charles  II.,  299. 

Regency  of  Prince  of  Wales,  393,  394, 
407. 

Religion  and  English  unity,  482,  483. 

Religious:  beliefs  and  social  discon- 
tent, 227,  228;  contests  and  the 
constitutions,  chs.  xix  and  xx; 
controversy,  ch.  xxiv;  controver- 
sies and  political  parties,  227;  dis- 
sension and  the  Commons,  ch.  xx; 
origin  of  democracy,  ch.  xxv ;  par- 
ties and  modern  political  parties, 
235,  236 ;  persecution,  235 ;  teachings 
and  political  power  of  the  Church, 
172. 

Remonstrance,  the  Grand,  292. 

Representation:  and  the  Cabinet,  78- 
80;  and  the  jury  system,  129. 

Resignation  of  the  Cabinet,  29 ;  resig- 
nation of  ministry  not  thought  of  in 
William  III.'s  reign,  345. 

Resistance  of  the  people  to  Govern- 
ment and  taxation,  ch.  xxxviii. 

Responsibility  of  Queen,  60. 

Restoration,  ch.  xxvii. 

Results:  of  the  Commonwealth,  294 
et  seq. ;  of  Magna  Charta,  166, 168. 


532 


INDEX 


Revenue :  bill,  origination  of,  199 ;  offi- 
cers prohibited  from  voting  for 
members  of  Parliament,  387 ;  sources 
of  royal  income,  136. 

Reverence  for  law,  272. 

Revolution  of  1688:  and  Burke,  432; 
the  death  of  the  divine-right  the- 
ory, 318;  and  the  supremacy  of 
Parliament,  318,  319;  the  Great 
Revolution,  ch.  xxx;  and  the  mod- 
ern Constitution,  319,  320. 

Rhode  Island's  charter,  450. 

Rich,  the  helpless,  and  Henrys  VII. 
and  Vlll.,  225. 

Richard  II.,  187  et  seq. 

Rights:  Bill  of,  318;  Petition  of,  271, 
273;  public  and  private,  distin- 
guished—Bates's  case,  261,  262. 

Rigid  Constitution,  15. 

Rockingham,  387. 

Romanism  in  reign  of  Elizabeth,  237, 
238. 

Romanists,  toleration  promised,  by 
James  I.,  277. 

Roman  Catholics :  and  Charles  II.,  304 ; 
and  James  II.,  313,  314. 

Rosebery,  84. 

Roses,  War  of,  effect  on  nobility,  200. 

Rotten  boroughs  abolished,  425. 

Roundheads,  297,  306,  307. 

Rousseau,  referred  to,  9,  14. 

Royal  rule  and  the  Council,  145  et 
seq. 

Rules :  constitutional,  107,  108 ;  of  de- 
bate in  Commons,  38. 

Rye  House  Plot,  311. 

S 

Salisbury,  73,  77,  83,  366. 

Salisbury,  meeting  at,  120. 

Salisbury,  Roger,  Bishop  of,  145. 

Scotland,  rule  of  Charles  I.  excites  in- 
surrection, 281. 

Scottish :  Peers,  41 ;  subjects  natural- 
ized by  courts,  262. 

Second  Chamber,  see  House  of  Lords. 

Secret:  advisers  of  the  King,  403; 
ballot  and  the  Chartist  movement, 
437 ;  Cabinet  meeting  restored  by 
Pitt,  397. 

Separation  of  powers,  34,  35. 

Septennial  Act,  336. 


Sessions,  Petty  and  Quarter,  101. 

Settlement,  Act  of :  ch.  xxxi ;  and  the 
Cabinet,  325. 

Shaftesbury:  306;  dismissed,  307-309, 
311. 

Shelburne,  415. 

Sheriff's  duties:  175;  in  the  election  of 
members  of  Parliament,  199. 

Ship-money :  and  Charles  I.,  281 ;  sanc- 
tioned by  courts,  260. 

Sidgwick's  Elements  of  Politics,  re- 
ferred to,  36,  50,  52,  79,  86. 

Sidmouth,  400. 

Sidney,  Algernon,  quoted,  450,  451, 
454. 

Social  discontent:  186;  and  religious 
beliefs,  228. 

Societies:  corresponding,  422;  of 
friends  of  the  people,  422. 

Sources  of  the  Constitution,  107-113. 

Sovereign :  and  the  Cabinet,  436,  437 ; 
rights  of  the,  67. 

Sovereignty:  defined,  9;  divided  sov- 
ereignty in  United  States,  10;  coex- 
istence of  sovereignties  in  American 
states,  10,  11;  and  the  people,  18; 
Stuart  view  of,  269. 

Spain  conciliated  by  James  I.,  277. 

Speech :  freedom  of,  in  House  of  Com- 
mons, 240 ;  right  of  free  speech,  94. 

Spiritual  Lords,  40. 

Spoils:  of  office  and  the  Cabinet,  411, 
414 ;  and  political  parties,  327,  328 ; 
and  elections,  438,  439. 

St.  Albans,  meeting  of  Council  at, 
161. 

Stability  of  the  Constitution  and  party 
strife,  479,  480. 

Star  Chamber,  Court  of:  216;  and 
Henry  VII.,  216,  217;  and  Henry 
VIII.,  229. 

State  of  nature,  Locke  on,  455,  456. 

Stephen  and  his  struggles,  147,  148. 

Strife  among  the  classes,  the  safe- 
guard of  English  liberty,  368,  369. 

Stuarts:  and  the  courts,  ch.  xxii, 
249,  250;  introduce  theories  of  gov- 
ernment in  English  politics,  253; 
regarded  as  law-breakers,  272 ;  and 
local  government,  447;  and  the 
nobility,  251 ;  their  notion  of  sover- 
eignty, 269. 

Stubbs,  referred  to,  120-122,  124,  130, 


INDEX 


63S 


133,  144,  150,  153,  155,  156,  165,  172, 
178, 184,  193,  199,  201. 

Stupidity :  benefits  of,  53 ;  and  consti- 
tutional progress,  123. 

Subsidies,  225. 

Succession:  to  the  Crown  and  the 
Constitution,  134;  divine  right  of, 
312. 

Suffrage:  and  Church  parish,  104; 
parliamentary  suffrage,  19. 

Sunderland,  344. 

Supplies :  and  the  Commons,  53 ;  grant- 
ing of  and  redressing  grievances, 
269;  voting  of  and  Parliament, 
184. 

Supremacy  of  the  House  of  Commons, 
33. 

Supreme  Court  of  Judicature,  99. 

Surplice,  petition  against  the  wearing 
of,  276. 

Suspensory  veto  of  the  Lords,  45. 

Swiss  democracy,  211,  212. 


Taxes :  and  the  clergy,  179 ;  collection 
of,  by  early  kings,  137  ;  difficulty  of 
raising,  268, 269 ;  and  Henry  II.,  155 ; 
and  Magna  Charta,  164,  165;  and 
municipal  corporations,  440;  taxes 
and  the  people  in  the  Tudor  period, 
218,  219 ;  rebellion  against  in  Ameri- 
can colonies,  375,  376;  and  the  un- 
represented nation,  ch.  xxxviii ;  and 
Walpole,  361,  377,  378. 

Tax-payers,  English,  are  unrepre- 
sented, 376  et  seq. 

Temple,  Earl,  390. 

Temple,  Sir  William,  his  scheme  of 
government,  342,  343. 

Temporal  Lords,  41. 

Tenants-in-chief  and  the  King,  135. 

Tenants:  and  Crown,  136,  136;  and 
local  courts,  123. 

Test  Act:  305;  James  II.  dispenses 
with  its  effect,  313,  416. 

Theories:  contradictory  in  English 
politics,  258,  259;  of  government 
introduced  into  English  politics  by 
Stuarts,  253;  of  political  philoso- 
phers pervert  our  reading  of  history, 
284. 

"Thorough"  policy,  279. 


Toleration:  and  Cromwell's  praying 
soldiers,  287;  an  ideal,  285;  prior 
to  the  Reformation,  285;  and  de- 
mocracy, ch.  XXV. 

Tories :  346  et  seq. ;  derivation  of,  310 ; 
and  Jacobites,  333,  334;  oppose 
James  II,  315,  316 ;  kept  from  power 
because  of  their  Jacobitism,  349, 
350 ;  can  maintain  their  organization 
when  excluded  from  office,  350 ;  and 
the  Pretender,  348 ;  restrict  the  Mon- 
arch, 323 ;  and  William  III.,  322. 

Townshend,  365. 

Towns  and  the  Tudors,  446,  447. 

Toynbee,  referred  to,  416. 

Treasurer,  is  the  Prime  Minister,  81. 

Treasury,  Walpole,  First  Lord  of,  362. 

Triennial  Act,  335. 

Tudors:  destroy  the  great  feudal 
families,  216;  and  local  govern- 
ment, 446,  447 ;  and  Parliament,  ch. 
xvii,  224-232,  ch.  xx;  Tudors  and 
Stuarts,  compared,  247,  248. 

Tyler,  Wat,  and  the  Kentish  rebellion, 
188. 

Tyranny  of  Charles  I.,  273. 

U 

Under-Secretary,  his  position  and  in- 
fluence with  the  Cabinet,  85. 

Understandings  and  the  English  Con- 
stitution, 35,  57  et  seq.,  107, 108. 

Uniformity,  Act  of,  303. 

United  States,  spoils  system  in,  439. 

Unity  of  the  English,  432,  ch.  1. 

Unrepresented  nation  and  taxation, 
ch.  xxxviii. 

Uprisings,  popular,  252. 

Utopia,  More's,  221,  222. 


Veto,  how  it  was  lost  to  the  Crown, 

265,  404,  405. 
Victoria  and  the  appointment  of  her 

household,  436. 
Virginia,  laws  and  constitutions  of, 

449,  450. 

W 
Walpole :  and  bribery  in  elections,  356; 

and    the    Cabinet,   ch.  xxxvi,  402, 

403 ;  and  the  creation  of  Peers,  355 ; 

defeated,  371 ;  fears  democracy,  368 ; 


634 


INDEX 


compared  with  Elizabeth,  366,  367; 
with  Henry  VIII.,  354 ;  and  the  House 
of  Lords,  355;  introduces  the  theory 
that  Commons  and  the  Government 
must  be  in  harmony,  356;  and  the 
King,  359,  360;  and  the  masses,  353; 
and  his  party,  362,  3(53 ;  makes  him- 
self Prime  Minister,  363-365 ;  resigns, 
361 ;  his  rule  compared  with  the 
Tudor,  353,  354;  subject  to  Sover- 
eign's pleasure,  429;  his  successors, 
ch.  xxxvii;  and  taxation,  377,378; 
compared  with  Cromwell  and  Wol- 
sey,  354, 

Wars  and  the  Crown,  118,  119. 

Washington,  74. 

Wealth  and  democracy,  205,  206. 

Wellington:  Duke  of,  109,  411; 
quoted,  425;  and  the  Reform  of 
1832,  434. 

Wentworth  240,  252,  279,  291. 

Wesley,  John:  his  agitation,  422;  de- 
fies James  II.,  315. 

Whigs :  Burke's  appeal  to,  470 ;  deri- 
vation of  the  name,  309;  elements 
of  the  party  in  eighteenth  century, 
350,  351 ;  and  George  I.,  348;  George 
III.,  385,  386,  388,  393, 413 ;  and  land- 
owners,  328,   329;    their    machine, 


416,  427 ;  sympathize  with  the  rebel- 
lious colonists,  463. 

Wiclif,  127,  188. 

Wilkes,  418,  422,  471. 

William  the  Conqueror:  and  Crown, 
119;  his  policy,  120. 

William  II.,  139-141. 

William*  of  Orange :  309,  316  j  invited 
to  England,  316;  insists  on  being 
made  king,  318. 

William  and  Mary,  317. 

William  III. :  and  the  formation  of  the 
Cabinet,  344 ;  his  own  foreign  secre- 
tary, 344;  and  his  ministries,  344, 
345,  371 ;  and  Tories,  322. 

William  IV.  and  the  Reform  of  1832,428. 

Wilmington,  370. 

Winchester,  Bishop  of,  40. 

Witan:  133, 134;  and  the  Privy  Council, 
194. 

Witenagemot,  see  Witan. 

Wolsey,  221,  224. 

Written  constitution,  obstacles  to,  in 
England,  64. 


York,  Archbishop  of,  40. 
York,  Duke  of :  305 ;  and  Jack  Cade, 
200. 


The  American  Commonwealth, 


BY  THE 


Right  Hon.  JAMES  BRYCE,  D.C.L., 

Author  of  "The  Holy  Roman  Empire";  M.P.  for  Aberdeen. 

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